Mastec Renewables P.R. LLC v. Mammoth Energy Servs., Inc.
Mastec Renewables P.R. LLC v. Mammoth Energy Servs., Inc.
2021 WL 9794642 (S.D. Fla. 2021)
June 22, 2021
Torres, Edwin G., United States Magistrate Judge
Summary
The court granted MasTec's motion to compel the production of an internal email and attachment, but denied the request for supplemental discovery. The court reviewed the document in camera and found that the email and attachment were not privileged communications, but that the attachment contained work product information that should be redacted. The court ordered the production of the email and the first page of the invoice.
MASTEC RENEWABLES PUERTO RICO LLC, Plaintiff,
v.
MAMMOTH ENERGY SERVICES, INC. AND COBRA ACQUISITIONS, LLC, Defendants
v.
MAMMOTH ENERGY SERVICES, INC. AND COBRA ACQUISITIONS, LLC, Defendants
CASE NO. 20-20263-Civ-SCOLA/TORRES
United States District Court, S.D. Florida
Entered on FLSD Docket June 22, 2021
Counsel
Jorge Luis Piedra, Rachel Sullivan, Detra Shaw-Wilder, Kozyak, Tropin & Throckmorton, P.A., Coral Gables, FL, Meaghan E. Goldstein, Coral Gables, FL, Tal J. Lifshitz, Benjamin Jacobs Widlanski, Kozyak Tropin Throckmorton LLP, Miami, FL, Lisa Hu Barquist, L5 Law Firm, Orlando, FL, for Plaintiff.Gregory J. Trask, Homer Bonner Jacobs, P.A., Miami, FL, Danielle Shrader-Frechette, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, David Michael Orta, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Harry Arthur Olivar, Jr., Pro Hac Vice, Jacob J. Waldman, Pro Hac Vice, Kristen Bird, Pro Hac Vice, Olga M. Vieira, Michael B. Carlinsky, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Coral Gables, FL, for Defendant Mammoth Energy Services, Inc.
Olga M. Vieira, Harry Arthur Olivar, Jr., Pro Hac Vice, Jacob J. Waldman, Pro Hac Vice, Kristen Bird, Pro Hac Vice, Michael B. Carlinsky, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Coral Gables, FL, Danielle Shrader-Frechette, Pro Hac Vice, Sean Taheri, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, David Michael Orta, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Gregory J. Trask, Peter W. Homer, Homer Bonner Jacobs, P.A., Miami, FL, Leigha Empson, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Defendant Cobra Acquisitions, LLC.
Torres, Edwin G., United States Magistrate Judge
ORDER ON PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY
*1 This matter is before the Court on a remaining ancillary discovery dispute that was first addressed at the discovery calendars held in February and March 2021. The Court requested supplemental briefing on the dispute, relating to a privilege issue, as well as submission of the documents at issue for in camera review. Based on that review, Plaintiff's motion to compel is Granted in very limited part and otherwise Denied.
1. Plaintiff MasTec Renewables Puerto Rico LLC (“MasTec”) filed this action to recover damages from Defendant Cobra Acquisitions, LLC (“Cobra”) for projects it says Cobra diverted to itself, and away from MasTec, through a bribery scheme involving a Federal Emergency Management Administration official in the wake of Hurricane Maria in 2017. After the Court's dismissal of RICO and other claims, MasTec's remaining claim against Cobra alleges tortious interference with a business relationship. MasTec claims that Cobra tortiously interfered with its $500 million contract with the Puerto Rico Electric Power Authority, executed in the wake of the destruction caused by the hurricane. According to MasTec, Cobra's interference was carried out through a bribery scheme, masterminded by Cobra's former president, Donald Keith Ellison, and executed with the help of Asha Nateef Tribble, a deputy regional administrator for FEMA. Both Ellison and Tribble are defendants in a criminal proceeding, pending in the District of Puerto Rico since 2019.
2. In this case, initiated in January 2020, trial is set for September 2021 and fact discovery has now closed. But one dispute remains to be resolved with respect to a document produced by Cobra as part of its rolling production. Specifically, Cobra produced an internal email (Bates stamped PROD_0803153) that included an attachment (Bates stamped PROD_0803155). This attachment was a copy of an invoice for legal services that a law firm, Norton Rose Fulbright, generated as part of its services on behalf of Ellison with respect to a Department of Justice investigation. The DOJ was conducting an investigation during the time that Ellison was serving as President of Cobra. It is undisputed that Cobra and former co-defendant Mammoth Energy Services, Inc. were paying for the legal services incurred on Ellison's behalf as part of this investigation. The email was an internal Cobra/Mammoth communication forwarding Norton Rose's invoice for payment for the months of June and July 2019.
3. As part of its production Cobra claims it inadvertently produced this email and attachment that should have been withheld on attorney-client privilege and work product grounds (as well as the fact it was not really responsive to any document request or relevant to these proceedings). When MasTec's counsel tried to inquire about the document at a deposition, Cobra's counsel, per the terms of the protective order entered in the case, invoked the claw-back provision and asserted a privilege against its use. Counsel claimed that Cobra had inadvertently produced the Invoice and that the Invoice was otherwise not discoverable.
*2 4. MasTec's counsel complied with that demand at the time, but thereafter sought the Court's intervention to compel the production of the document at issue. MasTec insists that it is entitled to production of the Invoice as well as supplemental discovery (like further deposition questions) that it seeks related to the issues raised by the Invoice. In the first place, MasTec argues, the invoice is not privileged or work product, as many courts have found. And in the second place, the invoice is relevant for impeachment purposes in the case as it shows that Cobra's efforts to distance itself from Ellison are illusory. The invoice shows that Cobra knew full well about the criminal investigation undertaken against Ellison, contrary to its later protestations. And the invoice further evidences the bias that Ellison has in Cobra's favor, given that Cobra was paying for his legal fees for his personal criminal liability.
5. Based on the Court's review of the document in camera, MasTec is correct that privileged communications are not really at issue in this invoice. Unless a timekeeper commits gross malpractice by disclosing the substance of attorney-client communications within a fee statement, typically documents evidencing legal fees do not evidence communications between counsel and client, for purposes of legal advice, which are necessary predicates for the invocation of an attorney-client privilege. See, e.g., In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982) (“The law in this circuit is that matters involving the receipt of fees from a client are not generally privileged.”) (affirming order compelling compliance with subpoena on counsel as to fees paid by client).
6. But billing records can often be laden with much information that can be encompassed by the work product doctrine. As a result, “billing information contain[ing] descriptions of services rendered which would reveal the mental impressions and opinions of counsel ... should be redacted as privileged.” Finol v. Finol, 869 So. 2d 666, 666 (Fla. 4th DCA 2004) (citing Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128 (Fla. 4th DCA 1991)).
7. Descriptions that disclose opinion or fact work product in this regard are protected unless the party claiming protection is affirmatively placing those matters at issue. Thus, as most of the cases cited by MasTec show, legal billing records are often compelled in toto when a fee dispute arises or where legal fees are a component of the objecting party's damages. The work product protection is thus overcome under the “at issue” exception to the work product doctrine. See, e.g., Grasso v. Grasso, 2015 WL 12915710, at *1 (M.D. Fla. Sept. 16, 2015); Devault v. Isdale, 2016 WL 25956, at *2-3 (M.D. Fla. Jan. 4, 2016); MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 591 n.170 (S.D. Fla. 2013); Rosenbaum v. Becker & Poliakoff, P.A., 2010 WL 11505517, at *8 (S.D. Fla. Apr. 13, 2010).
8. Here there is no claim that Cobra has placed its Ellison-related legal costs at issue, nor is there any defense to the tortious interference claim that somehow relies on the validity or amount of these fees. They are entirely inconsequential to the specific claims or defenses in the case. Thus Cobra has not placed these fees, or the fact that it indemnified its former president, at issue. Thus the work production protection safely applies and would ordinarily prevent the invoices's disclosure to the extent any work product information was revealed.
9. The Court's in camera review of the invoice reveals that a great deal of work product can be gleaned from the descriptions included in the June and July 2019 invoice. So many redactions would be required if, as MasTec suggests, the invoice can be produced with appropriate protections for Cobra's work product. That undermines the usefulness of the document as a whole. And indeed much of what MasTec apparently would like to use from the descriptions themselves, which evidence for instance that Cobra understood that Ellison was under criminal investigation, would have to be redacted in any event. So the most useful portions of the invoice for MasTec's stated purposes would have to be redacted if produced. This thus undermines the necessity of production in the first place.
*3 10. Second of all, to the extent that MasTec seeks production on the grounds that it evidences bias on Ellison's part, that necessity is largely moot given the well established stipulation that Ellison's fees were reimbursed by Cobra and Mammoth. That fact is not in dispute. So production of this invoice is largely cumulative and, at the very least, unduly burdensome given its usefulness. In deference to MasTec's position, however, the Court finds the email itself, with the attachment limited to the first page of the invoice (which evidences the purpose, relevant dates, and amount of fees and costs incurred) is all that need be produced to satisfy the impeachment purposes cited by MasTec. Nothing in the email evidences a privileged communication of any kind. And the first page of the invoice satisfies any usefulness that MasTec could have from the production of the redacted invoice. Anything further than that would not be sufficiently related to a claim or defense in the case to make it relevant beyond this limited production.
11. So MasTec's motion is granted in limited part. The request for supplemental discovery related to the invoice, however, is Denied as the Court sees little value in doing so. The authenticity of the email and invoice is undisputed and its benefits (limited as they are for impeachment purposes) can be fully realized at trial without further discovery now. Cobra shall comply with this Order by June 25, 2021.
DONE AND ORDERED in Chambers at Miami, Florida this 22nd day of June, 2021.