Crider, Inc. v. Silgan Containers LLC
Crider, Inc. v. Silgan Containers LLC
2023 WL 479094 (N.D. Tex. 2023)
January 13, 2023

Horan, David L.,  United States Magistrate Judge

Redaction
Attorney Work-Product
Waiver
Clawback
Protective Order
Failure to Produce
In Camera Review
Privilege Log
Attorney-Client Privilege
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Summary
The court granted in part and denied in part the motion to compel production of documents that Defendants had wrongfully designated as attorney-client privileged and/or work product. The court determined that the documents in question were not privileged or protected, and ordered Defendants to produce to Plaintiff's counsel a copy of the 448 withheld documents still at issue. The court also ordered the parties to file a joint status report to determine whether the Memorandum Opinion and Order should remain sealed.
CRIDER, INC., Plaintiff
v.
SILGAN CONTAINERS LLC and SILGAN CONTAINERS MANUFACTURING CORPORATION, Defendants
No. 3:21-cv-1047-M
United States District Court, N.D. Texas, Dallas Division
Signed January 13, 2023

Counsel

Attorneys for Plaintiffs: Joshua Abraham Romero, Christopher A. Thompson, David T. Moran, Jackson Walker LLP, Dallas, TX, James Matthew Dow, Jackson Walker, Austin, TX, Lindsey B. Mann, William Alexander Smith, Troutman Pepper Hamilton Sanders LLP, Atlanta, GA, William David Mahoney, Boteler, Mahoney & Gray, Irving, TX.
Attorneys for Defendants: Joseph P. Griffith, Jennifer Catherine Bartlett, Greenberg Traurig LLP, Dallas, TX, Michael Ross Goodman, Greenberg Traurig LLP, Denver, CO.
Horan, David L., United States Magistrate Judge

MEMORANDUM OPINION AND ORDER1

*1 Plaintiff Crider, Inc. has filed a sealed Motion for Expedited Relief and Motion to Compel Production of Documents that Defendants Have Wrongly Designated as Attorney-Client Privileged and/or Work Product, see Dkt. No. 83 (the “MTC”), which United States District Judge Barbara M. G. Lynn has referred to the undersigned United States magistrate judge for a hearing, if necessary, and determination under 28 U.S.C. § 636(b).
The Court granted the request to expedite by ordering an expedited briefing schedule. See Dkt. No. 84. Defendants Silgan Containers LLC and Silgan Containers Manufacturing timely responded to the MTC, see Dkt. No. 85, and served on Crider the Silgan Amended Privilege Log and Silgan Amended Clawback Privilege Log when filing their response, see Dkt. No. 89-1.
In its reply, Crider modifies its challenges to Silgan's work product and attorney-client privilege claims and the basis for its requested relief to now ask the Court, “[a]fter an in-camera review of the clawed-back documents that Section 4(f) of the Stipulated Protective Order required Defendants to submit ‘in connection with [their] motion papers,’ Dkt. 53 [at 5],” “on an expedited basis, [(1)(A) to] compel production of the documents identified on Exhibit 43 to the Supplemental Declaration of Lindsey Mann, or [(B)] alternatively find that Defendants waived privilege and work product as to all investigation documents” and “compel Defendants to produce all investigation materials” and [2] to “order payment of Crider's reasonable expenses.” Dkt. No. 89 at 2-3, 10 (cleaned up).
Specifically, as clarified during (and as of the time of) the January 5, 2023 oral argument, Crider currently challenges (1) Defendants' claim of work product on 355 documents listed on the Silgan Amended Privilege Log as well as the claim of attorney-client privilege to 5 of those same documents and (2) Defendants' claim of work product on 93 documents listed on the Silgan Amended Clawback Privilege Log.
And, by the Court's count, Crider only challenged 21 of those withheld or clawed-back documents for the first time in its reply after noting that Defendants added the documents for the first time in the Silgan Amended Privilege Log or Silgan Amended Clawback Privilege Log. See Dkt. No. 89 at 2 n.1; Dkt. No. 89-1 at 187-189 of 240.
The Court then, “[t]o comply with Section 4(f) of the Stipulated Protective Order, see Dkt. No. 53 at 5, ... direct[ed] Defendants Silgan Containers LLC and Silgan Containers Manufacturing to – by 4:30 p.m. CT on Tuesday. December 6, 2022 – deliver to Shakira Todd in the U.S. District Clerk's Office, 1100 Commerce Street, 14th Floor, Dallas, Texas 75242, in a sealed envelope addressed to the undersigned's attention and for the Court's in camera review, one copy of the 67 documents that are listed in the Amended Clawback Privilege Log and that Plaintiff Crider, Inc. currently challenges, see Dkt. No. 89 at 2-3, 10; Dkt. No. 89-1, Ex. 43.” Dkt. No. 92.
Defendants did so and submitted a letter to the Court explaining:
*2 Pursuant to the Court's Order dated December 5, 2022, enclosed please find the documents listed on Silgan Containers LLC and Silgan Containers Manufacturing Corporation's (together “Defendants”) Amended Clawback Log that Plaintiff Crider, Inc. (“Plaintiff”) challenges.
Although Plaintiff indicates that it only challenges 67 of the documents on Defendants' Amended Clawback Log, it appears that Plaintiff continues to challenge the privilege designation of 93 documents on the log. As set forth in Defendants' Amended Clawback Log in the first tab of this binder, this log includes 103 documents, which begins with PrivLogID Def_Priv_01118 and ends with Def_Priv_01242. Plaintiff's Exhibit 43, at Dkt. #89-1, which Plaintiff created from taking entries from Defendants' amended privilege logs, includes the contested entries from Defendants' Amended Clawback Log. It appears that Plaintiff color coded 93 of the 103 documents included on Defendants Amended Clawback Log, indicating that it still challenges 93 of these documents, not the 67 that it states on the first page of Plaintiff's Exhibit 43 of Dkt. #89-1. Out of an abundance of caution, Defendants have included copies of these 93 documents that Defendants believe are still at issue.
Dkt. No. 93 at 1.
The Court held oral argument by video teleconference on January 5, 2023. See Dkt. No. 100. And the Court, following the oral argument, “direct[ed] Defendants Silgan Containers LLC and Silgan Containers Manufacturing to – by 12:30 p.m. CT on Monday, January 9, 2023 – deliver to Shakira Todd in the U.S. District Clerk's Office, 1100 Commerce Street, 14th Floor, Dallas, Texas 75242, in a sealed envelope addressed to the undersigned's attention and for the Court's in camera review, one copy of the 355 documents that are listed on the Silgan Amended Privilege Log and that Plaintiff Crider, Inc. currently challenges.” Dkt. No. 101. Defendants did so on January 9, 2023. See Dkt. No. 102.
And, as discussed during the January 5, 2023 oral argument, the Court also ordered that “Defendants are directed to, by January 11, 2023, submit (and file on the docket a copy of) a letter to Plaintiff's counsel providing amended log entries as to the 5 withheld documents listed on the Silgan Amended Privilege Log on which Defendants' attorney-client privilege claims are still at issue, and Plaintiff is directed to then, by January 12, 2023, file a notice on the docket reporting to the Court whether Plaintiff is still challenging the attorney-client privilege claim as to those 5 documents in light of these latest amended log entries.” Dkt. No. 103.
As directed, on January 11, 2023, Defendants filed with the Court a letter that explained that, as to the 5 withheld documents on which Defendants' attorney-client privilege claims were at issue as of the time of the January 5, 2023 oral argument,
[p]ursuant to the discussion between the parties and the Court at the hearing on January 5, 2023, Silgan Containers LLC and Silgan Containers Manufacturing Corporation (together “Silgan”), sent a letter to Crider, Inc. on January 9, 2023, describing the five documents in detail that Crider challenged on the basis of Silgan's attorney/client privilege designations and attaching redacted copies of those documents. On January 10, 2023, Silgan notified Crider that it would be sending – and which it did, later that same day – an amended letter and copies of the redacted documents. Attached as Exhibit A is a copy of the letter from Silgan to Crider dated January 10, 2023. On January 10, 2023, Silgan also served Crider with Silgan's Second Amended Privilege Log that provided additional detail related to some of the documents at issue.
*3 Pursuant to the Court's Order dated January 10, 2022, Dkt. #103, Silgan is informing the Court that Silgan provided the redacted documents and an amended privilege log to Crider.
Dkt. No. 104 at 1. The letter attached Defendants' counsel's January 10, 2023 letter to Crider's counsel, which stated:
This amended letter addresses Silgan Containers LLC (“Silgan”) and Silgan Containers Manufacturing Corporations' (with Silgan, “Silgan” or “Defendants”) attorney-client privilege designations on five documents highlighted in gold on Crider, Inc.'s (“Crider”) Exhibit 43 to Mann's Supplemental Declaration attached to Crider's Reply in Support of its Motion to Compel. As we informed you, we inadvertently provided two documents previously that were not actually among the challenged Crider documents.
Silgan stands by its privilege designations for four out of five of these documents. [As discussed below, Silgan redesignates Def Priv 00701 as work product.] The Amended Privilege Log only includes the information from the latest chain in the to/from/cc fields; as such, it did not reflect the presence of an attorney earlier in the chain and/or reference to legal advice/strategy referenced in the chain and related to the above-referenced litigation. Below is additional detail related to the documents and attached are versions of these documents with redactions protecting the privileged information. We will be serving Silgan's Amended Privilege Log later today.
Def Priv 00418 is an email dated September 18, 2019 from Steve Huang, Silgan's general counsel, to Daniel Frio with Willis Towers, and with a cc to Dan Edelstein with Willis Towers. Silgan engaged Willis Towers, a forensic accounting firm, earlier in 2019, after Silgan anticipated litigation with Crider. The email details Mr. Huang's legal analysis related to issues in dispute and provides information to Willis Towers for the purpose of seeking additional information to provide legal advice to Silgan. The to/from/cc metadata was missing from this entry on the log, but Silgan has corrected this in its Amended Privilege Log.
Def Priv 00607 is an email chain that begins on February 26, 2020, from Steve Huang to Jerry Dy with Silgan, wherein Mr. Huang provides Mr. Dy information related to Crider's claims for the purpose of seeking additional information necessary to provide legal advice to Silgan related to the dispute. On that same day, Mr. Dy forwards Mr. Huang's email to Shawn Fabry with Silgan with additional information related to Crider's claim. On April 7, 2020, Mr. Fabry forwards that email (including Mr. Huang's email) to Dino Lapaglia with Silgan, and on April 9, 2020, Mr. Lapaglia forwards the email to Mr. Popple.
Def Priv 00690 is an email chain that begins with an email dated April 10, 2020, from Mr. Dave Bevan to Mr. Fabry copying Tom Snyder, Silgan's President, wherein they are discussing details related to the Crider claims and dispute. On April 10, 2020, Mr. Bevan replies with additional information. On April 11, 2020, Mr. Fabry forwards that email chain to Mr. Bevan and copies Mr. Snyder, Mr. Lapaglia, and Mr. Huang. Mr. Fabry's email contains significant detail related to the dispute provided for the purpose of obtaining legal advice. On April 12, 2020, Mr. Bevan adds additional detail and sends it to the same group of individuals and also copies Mr. Gresl. On April 13, 2020, Mr. Gresl forwards that chain to Mr. Popple.
*4 Def Priv 00696 is an email chain beginning with an email dated December 11, 2019, from Ms. Pereira to Mr. Frio with details related to the dispute and including a list of information to request from Silgan. That same day, Mr. Frio forwards her email to Mr. Huang and Mr. Popple seeking additional information to provide the information required for Mr. Huang to provide legal advice to Silgan. On March 2, 2020, Mr. Popple forwards the email chain to Mr. Gresl with additional information for the purpose of collecting additional information necessary for the provision of legal advice.
Def Priv 00701 is an attachment to an email (Def Priv 00700, which Crider does not challenge) sent to Mr. Huang among others to provide information to be discussed at a meeting. Although this was attached to an email sent to counsel regarding a meeting in which counsel was expected to participate, upon further review, Silgan has determined that the designation of the attachment itself should be redesignated as work product – not attorney/client privileged. For transparency, Silgan has provided a redacted version that only redacts the protected portion.
With respect to Silgan's Second Amended Privilege Log, which we will serve later today, you will notice that we amended the entries for Def Priv 01118-01140 to include a suffix – e.g., Def Priv 01118-AL. It came to our attention that when we previously added additional documents to the Amended Log, we bates labeled them with numbers that were also used for different documents on the Amended Clawback Log. To alleviate any future confusion, we added a suffix to the documents on the Second Amended Log to differentiate them from the documents listed on Silgan's Amended Clawback Log.
We are willing to work more with Crider on this issue to address any remaining concerns. Please let me know if Crider has additional questions or if this sufficiently addresses Crider's concerns and if Crider withdraws its challenges to Silgan's attorney-client privilege designations to the above documents.
Dkt. No. 104 at 2-3.
And, as directed, Crider's counsel on January 12, 2023 filed a notice on the docket reporting that,
[a]s directed at the January 5, 2023 hearing on Plaintiff Crider, Inc.'s Motion for Expedited Relief and Motion to Compel Production of Documents That Defendants Have Wrongly Designated as Attorney-Client Privileged and/or Work Product (Dkt. 100) and by the Court's January 10, 2023 Order (Dkt. 103), Crider hereby provides notice regarding whether it continues to challenge Defendants' attorney-client privilege and work product designations as to five documents: Def_Priv_00418; Def_Priv_00607; Def_Priv_00690; Def_Priv_00696; and Def_Priv_00701. After reviewing the redacted documents and second amended privilege log that Defendants provided on January 10 and considering Defendants' written representations regarding those documents, Crider provides notice of its challenges as follows.
• Def_Priv_00418; Def_Priv_00607; and Def_Priv_00696: Crider withdraws its challenges to these documents.
• Def_Priv_00690: Defendants informed Crider on January 11 that the two initial emails on the email chain marked as Def_Priv_00690 are designated as work product only. See Ex. A, Jan. 11, 2023 emails from J. Bartlett. The subsequent emails are designated as both attorney-client privileged and work product. In light of Defendants' representations regarding the substance of the subsequent emails in the chain, Crider challenges only Defendants' withholding of the first two emails on the chain on the basis of work product. Crider does so for the reasons set forth in its motion. [On January 9, Defendants provided Crider with a redacted document attached as Def_Priv_00690. The document had been produced to Crider during discovery in unredacted form and is not included on Defendants' privilege logs. Defendants informed Crider on January 10 that they attached the incorrect document as Def_Priv_00690. Even though Defendants have never designated the document originally attached as Def_Priv_00690 as privileged or work product, they inexplicably redacted and claimed that portions of it are privileged and work product. Defendants ultimately confirmed that they are not claiming any privilege or work product protection with respect to the document originally attached as Def_Priv_00690.]
*5 • Def_Priv_00701: Defendants have redesignated this document as work product only. Dkt. 104, Ex. A at 2. Crider challenges the work product designation for the reasons set forth in its motion.
Accordingly, in light of Defendants' voluntary production of many of the documents challenged in Crider's motion as being wrongly designated as attorney-client privileged, redesignation of many of those documents as work product only, and clarification of the above documents, all of Crider's challenges to documents designated as attorney-client privileged have been resolved.
Dkt. No. 105 at 1-2.
With the benefit of all of that and of the discussion with counsel during the January 5, 2023 oral argument, the Court has now reviewed the parties' briefing and public and sealed submissions on the MTC and conducted an in camera review of the 448 documents that are listed on the Silgan Amended Clawback Privilege Log or the Silgan Amended Privilege Log and as to which Crider currently challenges Defendants' work product claims.
And, for the reasons and to the extent explained below, the Court now grants in part and denies in part the MTC [Dkt. No. 83].
Legal Standards and Analysis
The Court has previously laid out standards that govern a Federal Rule of Civil Procedure 37(a) motion to compel as to Federal Rule of Civil Procedure 34 requests for production, and those standards are incorporated, but will not be repeated, here. See Lopez v. Don Herring Ltd., 327 F.R.D. 567, 573-86 (N.D. Tex. 2018).
As a further preliminary matter, the Court will not deny the MTC based on Defendants' argument that Crider did not properly confer with Defendants' counsel before filing the MTC and that Crider's Certificate of Conference is therefore misleading and is also procedurally defective under the Local Civil Rules. The Court understands Defendants' complaints and argument that they did not know which documents on their logs Crider was challenging before Crider filed the MTC and that the MTC's scope could have been narrowed before filing if they had.
But, here, “[e]ven if [Crider] failed to confer on certain issues, the Court will excuse strict compliance where, although the Court will not presume that a conference will be unproductive and a waste of time ..., here, it appears that on [at least the major remaining work product] issues conferring further would neither have eliminated nor narrowed the parties' dispute.” VeroBlue Farms USA Inc. v. Wulf, ___ F.R.D. ___, No. 3:19-cv-764-X, 2021 WL 5176839, at *25 (N.D. Tex. Nov. 8, 2021) (cleaned up). As Crider's counsel and Defendants' counsel agreed at oral argument, Crider's MTC on the work product dispute discussed and resolved below would still have required the Court's attention in any event. But “[a] failure[ ] to confer may impact the availability of sanctions should the Court grant the [MTC].” Samsung Elecs. Am., Inc. v. Chung, 321 F.R.D. 250, 288 (N.D. Tex. 2017) (cleaned up; citing FED. R. CIV. P. 37(a)(5)(A)(i)).
As to the merits of the MTC, “[t]he scope of discovery in civil cases under Federal Rule of Civil Procedure 26(b)(1) does not include privileged information or, absent the showing that Federal Rule of Civil Procedure 26(b)(3) mandates, work product protected information.” Jolivet v. Compass Grp. USA, Inc., 340 F.R.D. 7, 17 (N.D. Tex. 2021) (cleaned up). But, as further explained below, “[t]he attorney-client privilege or work product protection may be waived and [an otherwise privileged or protected] document may have to be produced.” Caringal v. Karteria Shipping, Ltd., No. Civ. A. 99-3159, 2001 WL 874704, at *3 n.4 (E.D. La. Jan. 10, 2001).
I. Attorney-Client Privilege
*6 As to attorney-client privilege, Crider's MTC asserts that,
[a]s the forum state, Texas's choice-of-law rules govern what state law applies to Defendants' claimed attorney-client privilege. Kasparov v. Ambit Tex., LLC, 2017 U.S. Dist. LEXIS 177518, at *30-33 (N.D. Tex. Oct. 26, 2017). “Texas courts utilize the most significant relationship test to determine which state's law applies to a particular substantive issue.” Id. at *33 (emphasis added) (citation omitted). This Court in denying Defendants' motion to dismiss “concluded on a preliminary basis that Georgia law governs questions of substantive ... law” concerning Crider's claims. Dkt. 62. As to Defendants' claimed privilege, Texas choice-of-law rules require that “the law of the state with the most significant relationship to the communications apply.” Cline v. Advanced Med. Optics, Inc., 2009 U.S. Dist. LEXIS 56050, at *6 (E.D. Tex. Mar. 6, 2009) (citation omitted). Silgan is based in California, Dkt. 69 ¶¶ 5, 13, and Crider understands that its in-house counsel was in California. Texas and California attorney-client privilege law conflict. See infra 18-19 (California privilege law recognizes the dominant purpose of the communication governs); In re Fairway Methanol LLC, 515 S.W.3d 480, 489 (Tex. App. 2017) (Texas privilege law rejects dominant purpose approach). California law thus applies to Defendants' privilege claim.
....
Non-attorney documents made in the ordinary course of business are not privileged unless their dominant purpose is in furtherance of the attorney-client relationship. Where a corporation “requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer's purpose in requiring the same; ... [w]hen the corporate employer has more than one purpose in directing such an employee to make a report or statement, the dominant purpose will control.” D.I. Chadbourne, Inc. v. Superior Ct., 60 Cal. 2d 723, 737 (1964); accord Syncora Guar. Inc. v. EMC Mortg. Corp., 2013 U.S. Dist. LEXIS 82102, at *7-8 (N.D. Cal. June 10, 2013) (“Privilege requires that the ‘dominant purpose’ of the communication be in furtherance of the attorney-client relationship.”). For example, the court in Syncora Guarantee concluded that privilege did not apply to communications relating to an analysis conducted by non-attorneys “who were performing their regular business functions.” 2013 U.S. Dist. LEXIS 82102, at *5–8. The court rejected the company's argument that privilege applied because the communications “were made at the direction of legal counsel for the purposes of providing legal advice to management,” reasoning that the company “failed to demonstrate that the analysis ... was not part of the general business of the company.” Id. at *6–8. The court in Shao Ying Sun v. Ikea US West, Inc. similarly concluded that in the absence of evidence establishing that non-attorney reports and communications were “intended to be confidential” communications to an attorney, rather than created for some other dominant business purpose, the privilege did not apply. 2015 U.S. Dist. LEXIS 150544, at *10–13 (N.D. Cal. Nov. 4, 2015); see also Aero. Corp. v. Factory Mut. Ins. Co., 2020 U.S. Dist. LEXIS 250284, at *5–6 (C.D. Cal. Dec. 15, 2020) (no privilege where reports and communications were “written by nonattorneys and do not explicitly seek legal advice,” “prepared in the ordinary course of business,” and not “marked ‘confidential’ or [given] any other indication that they were not to be disseminated”).
*7 Dkt. No. 83 at 18 n.7, 19.
Defendants disagree and explain that
Texas law should apply to the attorney-client privilege issues. “When the laws of two or more states may apply, the court must first determine whether those states' laws conflict with regard to the relevant issues.” Pillsbury Winthrop Shaw Pittman LLP v. Brown Sims, P.C., No. 4:09-mc-365, 2010 U.S. Dist. LEXIS 715, at *13-15 (S.D. Tex. 2010) (citation omitted). If the laws conflict, the court should look to the choice-of-law principles of Texas, the forum state. See id. (citing Cantu v. Jackson Nat. Life Ins. Co., 579 F.3d 434, 437 (5th Cir. 2009)). But if the relevant doctrines do not conflict, the court need not undertake a choice-of-law analysis, and the law of the forum state – Texas – should govern the action. See id. (declining to engage in a choice-of-law analysis between Texas and Florida because the laws did not conflict) (citations omitted). California and Texas law do not appear to conflict with respect to the general rule related to attorney-client privilege, and Texas law should apply to the attorney-client privilege issues. See Charalambopoulos v. Grammer, Civil Action No. 3:14-CV-2424-D, 2017 U.S. Dist. LEXIS 41600, at *8 n.3 (N.D. Tex. 2017) (“Charalambopoulos and Grammer appear to agree that California or Texas law governs Grammer's claim of privilege in this case, and that the court need not engage in a choice-of-law analysis because the outcome is the same under California or Texas law.”); Horn v. Farmers & Merchs. Bank of Long Beach, No. 5:10CV169, 2011 U.S. Dist. LEXIS 170380, at *6-7 (E.D. Tex. 2011) (agreeing that the attorney-client privilege issue in the case, and the result, was the same no matter which state's – Texas or California – law the court applied). Although the Court might determine California law or even another state's law might apply to the issues related to attorney-client privilege, it need not even conduct that analysis at this stage. Silgan cites to both states out of an abundance of caution. In any event, the primary privilege issue here relates to work product, which is governed by federal law.
Dkt. No. 85 at 22 n.16.
In reply, Crider insists that
Defendants wrongly argue that Texas law applies. Opp. 22 n.16. The court in Charalambopoulos v. Grammer, 2017 U.S. Dist. LEXIS 41600, at *8 (N.D. Tex. Mar. 8, 2017), analyzed the patient-physician privilege, and the court in Horn v. Farmers & Merchants Bank of Long Beach, 2011 U.S. Dist. LEXIS 170380, at *6-7 (E.D. Tex. June 1, 2011), did not assess the dominant purpose. California law applies because Texas and California law conflict on that issue. Mot. 18 n.7.
Dkt. No. 89 at 7 n.7.
In this context, the Court has previously explained that,
[i]n a diversity action raising only state law claims, the Court must apply the state law of attorney-client privilege. See FED. R. EVID. 501 (“The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). But, as another court in this circuit recently explained,
*8 [a]s Magistrate Judge Bourgeois of the Middle District of Louisiana has cogently stated: “Rule 501 is silent ... regarding how the court must determine the ‘state law’ governing privileges.” Shaw Group, Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 1784046, at *7 (M.D. La. May 5, 2014) (Bourgeois, M.J.).
Lead commentators have discussed three approaches for interpreting Rule 501 when faced with a horizontal choice of law issue: “(1) [a]ssume that the state “which supplies the rule of decision” is the state which also supplies the privilege law; (2) apply the privilege rules of the state in which the federal court sits; or (3) apply the conflict of law doctrine of the state in which the federal court sits.” KL Grp. v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987) (citing Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, § 5435, 865-69 (1980)). The Fifth Circuit has endorsed the third approach to Rule 501, which requires the court to apply the choice-of-law rules of the forum state to determine the governing law for attorney-client privilege. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 724, opinion supplemented on denial of reh'g, 628 F.2d 932 (5th Cir. 1980). This approach is consistent with the Erie doctrine, which requires federal courts sitting in diversity to apply the forum state's substantive law, including its choice-of-law rules. See Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 495-96 (1941).
Id.see Plotkin v. N. River Ins. Co., No. 12-1077, 2012 WL 2179103, at *4-5 (E.D. La. June 12, 2012) (Knowles, M.J.) (applying forum state's choice of law rules to decide which state's privilege law applies when there is a conflict between the forum state's privilege law and that of the state that supplies the substantive rule of decision).
In a footnote, however, with particular significance to the issue in the instant case, Magistrate Judge Bourgeois pointed out:
Several decisions in the Fifth Circuit appear to endorse the first approach to Rule 501 in the absence of any clear need to conduct a choice-of-law analysis. See, e.g., Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991) (“Since [Mississippi] state law provides the rule of decision, Mississippi law is determinative of the attorney client privilege.”). In fact, this court has applied the first approach in resolving a motion to quash a deposition filed by Zurich where there was no clear choice of law issue. (See R. Doc. 234 at 4, n. 3). Some courts have explicitly endorsed the first approach to Rule 501, however, where the substantive law has already been determined through choice-of-law principles. See, e.g., United States Sur. Co. v. Stevens Family Ltd. P'ship, No. 11 C 7480, 2014 WL 902893 (N.D. Ill. Mar. 7, 2014) (“Once the court has, by applying appropriate choice of law principles, determined the substantive law applicable to a claim based on state law, the privilege issues are determined by that same state's law.”).
Shaw Group, 2014 WL 1784046, at *7 n.10.
Benson v. Rosenthal, Civ. A. No. 15-782, 2016 WL 3001129, at *2-*3 (E.D. La. May 25, 2016).
The parties agree that, if the Court must engage in any choice-of-law analysis, it should apply Texas's choice-of-law rules. See generally Atl. Mar. Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 582 (2013) (explaining that ““[a] federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits” and that, “when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue's choice-of-law rules” (citing Klaxon, 313 U.S. at 494-96)).
*9 Texas courts utilize the “most significant relationship” test to determine which state's law applies to a particular substantive issue. See Coghlan v. Wellcraft Mar. Corp., 240 F.3d 449, 452 n.2 (5th Cir. 2001) (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984)). This test is based on the Restatement (Second) of Conflict of Laws and utilizes a multi-factor methodology to determine which state has the most significant relationship to the substantive issues involved in a dispute. See Duncan, 665 S.W.2d at 421. “The choice of law is evaluated issue by issue.” Casa Orlando Apartments, Ltd. v. Federal Nat'l Mortg. Ass'n, 624 F.3d 185, 191 (5th Cir. 2010). “Section 6 of the Restatement lists the general factors that should inform a choice of law question: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.” Id.
Deciding which state's laws should govern an issue “is a question of law for the court to decide.” Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex. 2000) (citing Duncan, 665 S.W.2d at 421); see also McKinney BB v. U.S. Realty Advisors, LLC, No. 01-11483, 2003 U.S. App. LEXIS 28011, at *18 (5th Cir. Jan. 24, 2003) (“[T]he question of which state's law to apply is a question of law.”); Janvey v. Suarez, No. 3:10-cv-2581-N, 2013 WL 5663107, at *3 (N.D. Tex. Oct. 17, 2013). But this legal determination involves a factual inquiry. See Hughes Wood Products, 18 S.W.3d at 204; Janvey, 2013 WL 5663107, at *3. That is, “the party urging application of another state's substantive law [must] furnish the Court with ‘sufficient information’ to establish that the law of another state applies.” Janvey v. Alguire, 846 F. Supp. 2d 662, 671 (N.D. Tex. 2011) (quoting Holden v. Capri Lighting, Inc., 960 S.W.2d 831, 833 (Tex. App. – Amarillo 1997, no pet.)) (internal quotations omitted). Absent such sufficient information, “ ‘the failure to provide adequate proof of choice of law ... results in a presumption that the law of the foreign jurisdiction is identical to the law of Texas.’ ” Id. (quoting Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769 (Tex. App. – Corpus Christi 1999, pet. denied)) (internal brackets omitted).
And “Texas courts initially determine whether there is a conflict between Texas law and the other potentially applicable law.” Bailey v. Shell Western E&P, Inc., 609 F.3d 710, 722 (5th Cir. 2010). “Where there are no differences between the relevant substantive laws of the respective states, there is no conflict, and a court need not undertake a choice of law analysis.” R.R. Mgmt. Co., L.L.C. v. CFS La. Midstream Co., 428 F.3d 214, 222 (5th Cir. 2005).
Kasparov v. Ambit Texas, LLC, No. 3:16-cv-3206-G-BN, 2017 WL 4842350, at *11-*13 (N.D. Tex. Oct. 26, 2017).
As the parties appear to agree, California has the most significant relationship to the communications. So the controlling question on whether to look to California or Texas law on attorney-client privilege is whether Texas and California law conflict.
As the Court has previously explained, if Texas law govern claims of attorney-client privilege in this diversity case,
[u]nder Texas law, the elements of the attorney-client privilege are: (1) a confidential communication; (2) made for the purpose of facilitating the rendition of professional legal services; (3) between or amongst the client, lawyer, and their representatives; and (4) the privilege has not been waived. [See TEX. R. EVID. 503(b).] The burden is on the party asserting the privilege to demonstrate how each document satisfies these elements. A general allegation of privilege is insufficient to meet this burden. Instead, the proponent must provide sufficient facts by way of detailed affidavits or other evidence to enable the court to determine whether the privilege exists. Although a privilege log and an in camera review of documents may assist the court in conducting its analysis, a party asserting the privilege still must provide “a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.” In fact, “resort to in camera review is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.”
*10 Curlee v. United Parcel Serv., Inc. (Ohio), No. 3:13-cv-344-P, 2014 WL 4262036, at *4 (N.D. Tex. Aug. 29, 2014) (citations omitted).
[Texas Rule of Evidence 503(b)] extends the attorney-client privilege to communications between the client's lawyer and the client's representative. Under Rule 503(b), “[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client: (A) between the client or the client's representative and the client's lawyer or the lawyer's representative; (B) between the client's lawyer and the lawyer's representative; (C) by the client, the client's representative, the client's lawyer, or the lawyer's representative to a lawyer representing another party in a pending action or that lawyer's representative, if the communications concern a matter of common interest in the pending action; (D) between the client's representatives or between the client and the client's representative; or (E) among lawyers and their representatives representing the same client.” TEX. R. EVID. 503(b)(1). “A communication is ‘confidential’ if not intended to be disclosed to third persons other than those: (A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication.” TEX. R. EVID. 503(a)(5).
“The privilege may be claimed by: (1) the client; (2) the client's guardian or conservator; (3) a deceased client's personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity – whether or not in existence. The person who was the client's lawyer or the lawyer's representative when the communication was made may claim the privilege on the client's behalf – and is presumed to have authority to do so.” TEX. R. EVID. 503(c).
Texas Rule of Evidence 503(a)(2) defines a “client's representative” as “(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or (B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.” TEX. R. EVID. 503(a)(2). And Texas Rule of Evidence 503(a)(4) defines a “lawyer's representative” as “(A) one employed by the lawyer to assist in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.” TEX. R. EVID. 503(a)(4).
Total Rx Care, LLC v. Great N. Ins. Co., 318 F.R.D. 587, 595-96 (N.D. Tex. 2017).
Consistent with this law regarding communications between a client and its agents, “the language of [Texas Rule of Evidence] 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.” In re Fairway Methanol LLC, 515 S.W.3d 480, 489 (Tex. App. – Hous. [14th Dist.] 2017, orig. proceeding); accord In re Rescue Concepts, Inc., 556 S.W.3d 331, 345 (Tex. App. –Hous. [1st Dist.] 2017, orig. proceeding).
*11 On the other hand, as a magistrate judge in the Southern District of California recently summarized,
[t]he California attorney-client privilege is codified in Cal. Evid. Code §§ 950 et seq. The privilege protects confidential communications between a client and lawyer made during the course of the attorney-client relationship. “The privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client.” Mitchell v. Super. Ct., 691 P.2d 642, 645 (Cal. 1984).
A “confidential communication between client and lawyer” is defined in the California Evidence Code as:
... information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.
CAL. EVID. CODE § 952 (emphasis added).
“[W]aiver of the attorney-client privilege ... occurs when any holder of the privilege ‘has disclosed a significant part of the communication or has consented to such disclosure made by anyone....” Mitchell v. Super. Ct., 691 P.2d 642, 647 (Cal. 1984) (quoting CAL. EVID. CODE § 912(a)). But, pertinent to the parties' arguments here, a disclosure that is itself privileged does not operate as a waiver. CAL. EVID. CODE § 912(c). The word “client” is defined in the California Evidence Code as “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity[.]” CAL. EVID. CODE § 951. “By including ‘authorized representative’ in the definition of ‘client,’ the statute extends the privilege to cover not only communications directly between the client and the attorney but also communications between the client's agents and the attorney.” Selten v. Hyon, 60 Cal. Rptr. 3d 896, 901 (Cal. Ct. App. 2007).
Accordingly, if the documents at issue are attorney-client communications, the fact that they were disclosed to third parties does not necessarily dictate a finding of waiver of the privilege, so long as they were disclosed “to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted[.]” CAL. EVID. CODE § 952. See also Zurich Am. Ins. Co. v. Super. Ct., 66 Cal. Rptr. 3d 833, 839 (Cal. Ct. App. 2007) (quoting Ins. Co. of N. Am. v. Super. Ct., 166 Cal. Rptr. 880, 885 (Cal. Ct. App. 1980)) (“California courts have held that the ‘privilege extends to communications which are intended to be confidential, if they are made to attorneys, to family members, business associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary to further the interest of the litigant.’ “) (emphasis deleted).
*12 In determining whether the privilege applies to a given communication, rather than looking to the contents of the communication, the Court must focus its inquiry on the “dominant purpose of the relationship between the parties to the communication. Under that approach, when the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege.” Cal. Earthquake Auth. v. Metro. W. Sec., LLC, 285 F.R.D. 585, 595 (E.D. Cal. 2012) (quoting Clark v. Superior Court, 125 Cal. Rptr. 3d 361, 372 (Cal. Ct. App. 2011)) (emphasis in original).
Phipps v. Camp Pendleton & Quantico Hous., LLC, No. 321CV01514DMSAHG, 2022 WL 16639292, at *2-*3 (S.D. Cal. Nov. 2, 2022).
But, at the same time, “the attorney-client privilege does not attach to an attorney's communications when the client's dominant purpose in retaining the attorney was something other than to provide the client with a legal opinion or legal advice,” such as “when the attorney acts merely as a negotiator for the client or is providing business advice”; “in that case, the relationship between the parties to the communication is not one of attorney-client.” Costco Wholesale Corp. v. Superior Ct., 47 Cal. 4th 725, 735, 219 P.3d 736, 743 (Cal. 2009) (cleaned up).
The California Supreme Court of California in “Costco thus recognized that not all communications between attorney and client become privileged solely by virtue of the mode of communication (confidential versus not)” and “not every communication between attorney and client is privileged solely because it is confidentially transmitted.” Los Angeles Cnty. Bd. of Supervisors v. Superior Ct., 2 Cal. 5th 282, 295, 296, 386 P.3d 773, 780 (Cal. 2016). The Supreme Court of California in a later decision explained that “the privilege does not apply to every single communication transmitted confidentially between lawyer and client. Rather, the heartland of the privilege protects those communications that bear some relationship to the attorney's provision of legal consultation.” Id. at 294, 386 P.3d at 779.
“The attorney-client privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney's legal advice or representation.” Id. at 293, 386 P.3d at 779. “What the inquiry turns on ... is the link between the content of the communication and the types of communication that the attorney-client privilege was designed to keep confidential. In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose.” Id. at 297, 386 P.3d at 781.
And “a client cannot protect unprivileged information from discovery by transmitting it to an attorney.” Costco, 47 Cal. 4th at 735, 219 P.3d at 742. That is, “a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney” – “[w]hile the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney.” Id.
But, as to the actual attorney-client communication, “[t]he attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” Id. at 734, 219 P.3d at 741. “[B]ecause the privilege protects the transmission of information, if the communication is privileged, it does not become unprivileged simply because it contains material that could be discovered by some other means.” Id. at 735, 219 P.3d at 742; cf. PNC Equip. Fin., LLC v. California Fairs Fin. Auth., No. 2:11-CV-2019 GEB CKD, 2012 WL 2505034, at *2 (E.D. Cal. June 28, 2012) (“Although defendant raises concerns about insulating information from discovery merely by cc'ing in-house counsel, that is a matter for legislative amendment.”).
*13 And, under California law,
[t]his so-called “dominant purpose” test is not always limited to an evaluation of the dominant purpose of the relationship between the parties to the communication, however. The “dominant purpose” test also dictates that where a communication serves a dual purpose, “one for transmittal to an attorney in the course of professional employment and one not related to that purpose,” the Court must also consider the dominant purpose of the communication. Travelers Ins. Cos. v. Super. Ct., 191 Cal. Rptr. 871, 879-80 (Cal. Ct. App. 1983) (quotation omitted).
Phipps, 2022 WL 16639292, at *3.
And, so, under California law, “[w]hen information is collected to serve a dual purpose, one for transmittal to an attorney and one not related to that purpose, the question is which purpose ‘predominates.’ ” Nadeau v. Wealth Couns. LLC, No. 2:17-CV-00561-MCE-AC, 2018 WL 2981748, at *6 (E.D. Cal. June 14, 2018) (citing Costco, 47 Cal. 4th at 739-40).
And “[t]he communication is privileged if its dominant purpose is ‘for transmittal to an attorney in the course of professional employment.’ ” Phipps, 2022 WL 16639292, at *3 (quoting Holm v. Super. Ct., 267 P.2d 1025, 1028 (Cal. 1954), overruled on other grounds by Suezaki v. Super. Ct. of Santa Clara Cnty., 373 P.2d 432, 435-37 (Cal. 1962)); accord In re Pac. Fertility Ctr. Litig., No. 18-CV-01586-JSC, 2020 WL 1934981, at *3 (N.D. Cal. Apr. 22, 2020) (explaining that the Court of Appeals in Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 101 Cal. Rptr. 3d 758, 219 P.3d 736 (2009), was considering “the scope of the privilege as between an attorney and a corporate employee and whether the corporation's dominant purpose in requiring the employee to make a statement is the confidential transmittal to the corporation's attorney of information emanating from the corporation” and held that, “if so, the communication is privileged” (cleaned up)).
If any of the documents that Defendants are withholding as attorney-client privileged involve communications between Defendants' non-attorneys that might have been made for a business purpose, Texas and California law conflict. And so the Court would be required to look to California law on attorney-client privilege, under which, when the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege so long as it was made for the purpose of seeking or delivering the attorney's legal advice or representation.
But, as explained above, the parties have, as of January 12, 2023, resolved their remaining issues regarding attorney-client privilege on the only withheld documents as to which Crider was challenging Defendants' privilege claims as of the time of, and following, the January 5, 2023 oral argument.
The Court therefore denies the MTC as moot as to any challenges to Defendants' attorney-client privilege claims.
II. Attorney Work Product Protection
Whether documents are exempt from discovery under the attorney work product doctrine is governed by federal law. See Zenith Ins. Co. v. Texas Institute for Surgery, L.L.P., 328 F.R.D. 153, 162 (N.D. Tex. 2018).
*14 Defendants, as the responding parties seeking to withhold responsive documents or materials, bear the burden of demonstrating that the work product doctrine applies, and
[t]he federal work product doctrine, as codified by Federal Rule of Civil Procedure 26(b)(3), provides for the qualified protection of documents and tangible things prepared by or for a party or that party's representative “in anticipation of litigation or for trial.” A document need not be generated in the course of an ongoing lawsuit in order to qualify for work product protection. But “the primary motivating purpose” behind the creation of the document must be to aid in possible future litigation. As the advisory committee notes to Rule 26(b)(3) make clear, “[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision.”
Among the factors relevant to determining the primary motivation for creating a document are “the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance.” If the document would have been created without regard to whether litigation was expected to ensue, it was made in the ordinary course of business and not in anticipation of litigation.
Id. (cleaned up).
But, as another court has observed, “[a]lthough consideration of a producer's business or routine may be relevant ... as evidence of the purpose or use for which the producer created the documents, the standard against which documents are measured for work product protection is not the nature of a document producer's business or the history of its internal procedures, but whether they were produced for litigation or non-litigation purposes.” Stout v. Illinois Farmers Ins. Co., 150 F.R.D. 594, 597 (S.D. Ind. 1993) (cleaned up), aff'd, 852 F. Supp. 704 (S.D. Ind. 1994) (noting, among other things: “To the extent a document is not created primarily to aid in possible future litigation, it is correctly excluded from the protection of the work product privilege.”).
Under this standard, “ ‘[t]he mere contingency that litigation may result is not determinative’ as to whether the work product doctrine is applicable, nor does the mere contingency of litigation ‘qualify an in house report as work product.’ ” Hamdan v. Ind. Univ. Health N., LLC, No. 1:13-CV-00195-WTL, 2014 WL 2881551, at *2 (S.D. Ind. June 24, 2014) (cleaned up; quoting Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983) (quoting as “persuasive” the reasoning that, “[w]hile litigation need not be imminent, the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation” (cleaned up))).
And “simply carbon copying (‘cc'ing’) an attorney on an email chain does not render the chain ... work product.” Shell Offshore Inc. v. ENI Petroleum US LLC, No. CV 16-15537, 2017 WL 11536166, at *2 (E.D. La. Nov. 9, 2017); accord Brown v. Jones Lang LaSalle Ams., Inc., No. CV1503883SJOFFMX, 2016 WL 11756812, at *9 (C.D. Cal. May 23, 2016) (noting the proposition that, “if documents carbon copied or forwarded to an attorney are created for routine business purposes, by non-attorneys, they likewise do not fall within the purview of the work product privilege” (cleaned up)), on reconsideration on other grounds, 2016 WL 11756811 (C.D. Cal. June 13, 2016).
*15 Like all privileges, the work product doctrine must be strictly construed. The burden is on the party who seeks work product protection to show that the materials at issue were prepared by its representative in anticipation of litigation or for trial. A general allegation of work product protection is insufficient to meet this burden. Instead, a clear showing must be made which sets forth the items or categories objected to and the reasons for that objection. The proponent must provide sufficient facts by way of detailed affidavits or other evidence to enable the court to determine whether the documents constitute work product. Although a privilege log and an in camera review of documents may assist the court in conducting its analysis, a party asserting the work product exemption still must provide a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure. In fact, resort to in camera review is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.
Zenith, 328 F.R.D. at 162 (cleaned up).
“If a party meets its burden and proves that the materials sought warrant work product protection, the party seeking discovery must prove why those materials should still be produced.” S.E.C. v. Brady, 238 F.R.D. 429, 443 (N.D. Tex. 2006). A party may only obtain discovery of documents prepared in anticipation of litigation or for trial upon showing that the party seeking discovery has (1) substantial need of the materials to prepare for its case and (2) that the party cannot obtain the substantial equivalent of the materials by other means without undue hardship. See FED. R. CIV. P. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”).
But the work product rule accords “special protection to work-product revealing the attorney's mental processes.” Upjohn Co. v. United States, 449 U.S. 383, 400 (1981). Rule 26(b)(3) instructs the court to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” FED. R. CIV. P. 26(b)(3)(B). As such, “if the materials sought are opinion work-product then a court may compel discovery only if the party seeking the materials demonstrates a compelling need for the information.” Brady, 238 F.R.D. at 443; accord S.E.C. v. Cuban, No. 3:08-cv-2050-D, 2012 WL 456532, at *2 & n.3 (N.D. Tex. Feb. 10, 2012).
And, as to waiver of work product protection, the Court has previously explained that
[t]he work-product doctrine is very different from the attorney-client privilege with regard to possible waiver. Although the attorney-client privilege exists to protect the confidential communications between an attorney and client and, thus, is generally waived by disclosure of confidential communications to third parties, the work-product protection exists to “promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of an opponent.” Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989). “Therefore, the mere voluntary disclosure to a third person is insufficient in itself to waive the work product privilege.” Id. That is, “because the work product privilege looks to the vitality of the adversary system rather than simply seeking to preserve confidentiality, it is not automatically waived by the disclosure to a third party.” In re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000). But such a “disclosure does waive protection if it has substantially increased the opportunities for potential adversaries to obtain the information.” Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010) (internal quotation marks omitted). And, for example, “the work product privilege is waived when the attorney requests the witness to disclose the information or when the attorney discloses the information to the court voluntarily or makes no objection when it is offered.” Shields, 864 F.2d at 382.
*16 Mir v. L-3 Comm=ns Integrated Sys., L.P., 315 F.R.D. 460, 467 (N.D. Tex. 2016).
“What constitutes a waiver with respect to work-product materials depends, of course, upon the circumstances.” United States v. Nobles, 422 U.S. 225, 239 n.14 (1975). But “[t]he voluntary disclosure of attorney work product to an adversary or a conduit to an adversary waives work-product protection for that material.” Albritton v. Acclarent, Inc., No. 3:16-cv-3340-M, 2020 WL 11627275, at *9 (N.D. Tex. Feb. 28, 2020) (cleaned up); accord Brady, 238 F.R.D. at 444 (explaining that waiver “results if the work product is disclosed to an adversary or treated in a manner that substantially increases the likelihood that an adversary will come into possession of that material”).
“Unlike the attorney-client privilege, the burden of proving waiver of work product immunity falls on the party asserting waiver.” [S.E.C. v. Brady, 238 F.R.D. 429, 444 (N.D. Tex. 2006)]; accord Ecuadorian Plaintiffs, 619 F.3d at 379 & n.10 (party asserting work-product protection is not required to prove non-waiver).
Mir, 315 F.R.D. at 467.
And, as a general matter (with an exception discussed below), “ ‘[i]f the party is successful, waiver of work product immunity will be limited to the materials actually disclosed.’ ” Id. (quoting Brady, 238 F.R.D. at 444).
Crider challenges Defendants' claims of work production protection as to a total of 448 documents listed on Defendants' Amended Privilege Log or Amended Clawback Privilege Log.
Crider asserts that (1) Defendants have not met their burden to support a work product protection claim where they “have failed to prove they created non-attorney investigation materials before June 26, 2020 for the primary purpose of aiding in litigation rather than in the ordinary course of business” and (2) “Defendants waived any work product ... as to all investigation materials by deliberately disclosing select findings to Crider” and “deliberately disclosing select investigation documents to Crider during the investigation.” Dkt. No. 89 at 1-2, 16.
In opposition, Defendants assert that their internal investigations and communications dated March 7, 2019 and later related to Crider's black sulfide complaints “are protected work product prepared [by Silgan representatives] in anticipation of litigation – not for a routine business purpose, and Silgan did not waive work-product protection by sharing certain information with Crider related to black sulfide investigations as Silgan is not attempting to use such information as a sword and a shield” – that is, while “Silgan shared certain information with Crider prior to the litigation related to the disputed black sulfide issues, [ ] Silgan did not disclose work product to gain a tactical advantage during the course of litigation.” Dkt. No. 85 at 4-5, 13, 18-19.
Defendants contend that “[t]he primary purpose of Silgan's investigation beginning at least by March 7, 2019 was in anticipation of litigation,” where, “[at] least by March 2019, Silgan's counsel was involved in the dispute and it was clear that litigation was not only possible, but likely.” Id. at 13, 15.
*17 According to Defendants, “that Silgan and Crider had a business relationship and that Silgan would investigate Crider's complaints as they arose does not mean that documents related to the issues in dispute here and created in anticipation of this litigation are documents made in the ordinary course of business,” where, “when Crider made demands of Silgan in March 2019, the amount of which was sufficient to warrant the involvement of Silgan's counsel and insurance carriers, investigative reports and communications Silgan created from that point on were created in anticipation of litigation.” Id. at 16 (emphasis in original); see also id. at 17 (asserting that “the amount of Crider's claims here was serious enough to warrant the involvement of Silgan's in-house counsel and to put Silgan's insurers on notice” (citing Huang Decl. at ¶¶ 4-10). And so Defendants assert that,
contrary to Crider's contention, the primary motivating purpose for the creation of the documents at issue was impending litigation with Crider. Simply put, the documents at issue here were not created in the ordinary course of business. The documents at issue would not have been created but for the potential litigation with Crider.
Dkt. No. 85 at 17-18 (cleaned up).
Defendants further argue, although “Crider contends that Silgan could not have anticipated litigation before June 26, 2020, because that was when Silgan issued a litigation hold, and any documents and communications before that cannot be protected work product,” “whether a party has issued a litigation hold is not dispositive as to whether it anticipated litigation.” Id. at 15 (cleaned up). And Defendants' counsel asserted at oral argument that neither the date of retention of counsel nor the date that a party issued a litigation hold is dispositive of the date that, for purposes of work product protection, the party anticipated litigation.
As explained above, to meet their burden, Defendants must provide sufficient facts through detailed affidavits or other evidence, providing a detailed description of the materials in dispute and stating specific and precise reasons for their claim of protection from disclosure, to enable the Court to determine whether each document at issue constitutes protected work product.
To establish work product protection as to each challenged document, Defendants must establish that the document or tangible thing was prepared by or for Defendants or Defendants' representative in anticipation of litigation or for trial by showing that
• the primary motivating purpose behind the creation of the document was to aid in possible future litigation (as opposed to having been assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes), which showing may include pointing to
o the retention of counsel and his involvement in the generation of the document;
o that the document was prepared in response to a particular circumstance, as opposed to as part of a routine practice to prepare that type of document; and
o that the document would not have been created if litigation was not expected to ensue – that is, that the document is not one that would have been created without regard to whether litigation was expected to ensue.
In support of their work product protection claims, Defendants submit the Declaration of Steven Huang, who attests that
I joined Silgan Containers LLC (“Silgan Containers”) as General Counsel & Assistant Secretary in December 2018. In December 2020, I was promoted to Vice President, General Counsel & Assistant Secretary (“General Counsel”), a position which I have held since that time. In my role as General Counsel, I provide legal advice to Silgan and also coordinate with outside counsel, among other things.
3. On or about April 8, 2014, Silgan and Crider, Inc. (“Crider”) entered into a Container Supply Agreement (the “Agreement”), wherein Silgan agreed to manufacture and supply can bodies and can ends (“cans”) to Crider in bulk, which Crider planned to use to house its canned meat products.
*18 4. On or around March 7, 2019, Crider provided notice that it was filing a claim for the full inventory value of product allegedly affected by black sulfide on cans that Silgan sold to Crider under the Agreement. Crider had previously informed my technical and sales colleagues about this problem. Crider informed Silgan that the claim for the specified product totaled approximately $221,598. Attached hereto as Exhibit 1-A is a true and correct copy of an email dated March 7, 2019, that Mark Howell with Crider sent to Dan Popple at Silgan, which Silgan produced as SILGAN 00035554. I have been overseeing this dispute since this issue was brought to my attention in early March 2019.
5. On March 8, 2019, Crider again emailed to provide an update on the claim, noting that the total estimated cost of products to be returned was $4,658,040. Silgan began investigating the cause of the black sulfide by that time, at the latest. Attached hereto as Exhibit 1-B is a true and correct copy of an email chain beginning March 8, 2019, which Silgan produced as SILGAN 00035828.
6. Given the amount of the potential claim, in May 2019, I put Silgan's insurance carriers on notice of Crider's claims. I was also involved with an executive summary regarding the dispute being drafted in May 2019 that Silgan business representatives were preparing related to the claim and requested a copy to review for legal purposes because [I] believed litigation with Crider was forthcoming. Although I am not involved in every investigation that Silgan's technical representatives undertake related to customer complaints, I became involved here because of the amount of the claim at issue and the perceived litigious nature of Crider.
7. Also in May 2019, I personally coordinated engaging a forensic accountant, which was not routine. During my time with Silgan Containers, we have never engaged a forensic accountant for routine warranty issues where litigation was not anticipated. The forensic accountant was involved in this case much earlier than we have ever involved a forensic accountant because of the size of this claim, and because I anticipated litigation.
8. Beginning in June 2019, Crider became aware of alleged black sulfide in additional products. On June 24, 2019, Crider informed Silgan that approximately 250,000 cases of product allegedly valued at $8,532,954 had been placed in quarantine by the Peruvian government. Attached hereto as Exhibit 1-C is a true and correct copy of Notice of Delivery of Non-Conforming Goods and Breach of Warranty that Crider sent to Silgan on September 26, 2019, which contended that Silgan breached its warranty under the Agreement, resulting in estimated losses related to the Costco and Peruvian Products of $19.5 million, at a minimum.
9. Throughout this time, Silgan was conducting internal testing and investigations into the cause of the black sulfide and was also working with third parties to conduct testing into Crider's complaints related to black sulfide, including testing related to coating that Crider contends led to the development of black sulfide. Although Silgan routinely conducted internal investigations into customer complaints, including Crider's, Silgan undertook the investigations and testing related to Crider's claim because Silgan anticipated that the dispute may result in litigation.
10. Silgan's primary motivating purpose in conducting these investigations, instructing third parties to conduct testing, and communicating internally and with those third parties was in anticipation of litigation. This comports with an email chain between Billy Crider and Mark Howell where Mr. Howell forwards a copy of the March 7, 2019 claim email to Silgan with a note saying “I sent this to Silgan today.” Mr. Crider responds, “Good This should start it.” Attached as Exhibit 1-D is a true and correct copy of the email, which Crider produced as CRIDER00013556. Silgan would not have conducted this testing and would not have engaged these third parties to conduct these investigations had Silgan not believed that there was a reasonable likelihood that litigation was forthcoming.
*19 Dkt. No. 85-1 at 2-5 of 18.
On this record, Defendants do not assert that Silgan would not have investigated Crider's claims if litigation was not expected to ensue – and Defendants' counsel acknowledged as much at oral argument. Mr. Huang admits that “Silgan routinely conducted internal investigations into customer complaints, including Crider's.” Dkt. No. 85-1 at 4 of 18.
Defendants instead contend that they would not have undertaken the investigation of Crider's claims in the manner in which they did, including engaging a forensic accountant, and would not have created the documents resulting from their work with third parties to conduct testing into Crider's complaints related to black sulfide and those particular investigations had Silgan not believed that there was a reasonable likelihood that litigation was forthcoming. See Dkt. No. 85-1 at 4-5 of 18.
That is, Defendants assert that Silgan would not “have undertaken the same investigation regardless whether litigation was anticipated.” Elec. Data Sys. Corp. v. Steingraber, No. 4:02 CV 225, 2003 WL 21653414, at *5 (E.D. Tex. July 9, 2003). And, on this basis, Defendants assert work product protection over the withheld investigation documents generated between March 7, 2019 and June 26, 2020 that Crider is placing at issue.
But Defendants acknowledge that “Silgan shared certain information with Crider prior to the litigation related to the disputed black sulfide issues,” Dkt. No. 85 at 19, but assert that “Silgan did not waive work product protection by sharing information related to Silgan's investigation with Crider” during that same March 7, 2019 – June 26, 2020 timeframe, id. at 18.
Leaving aside Crider's assertions of subject-matter waiver, as to the primary question of whether Defendants have met their burden of establishing work product protection over March 7, 2019-to-June 26, 2020 investigation documents, Defendants also suggest that the investigative documents that Silgan shared with Crider prior to litigation were “primarily factual in nature and did not contain all of [Silgan's] findings and conclusions.” Dkt. No. 85 at 19. And, at oral argument, Defendants' counsel asserted that the pre-June 26, 2020 investigation documents withheld as work product are particularly focused on or specifically motivated in their creation by Silgan's anticipation of litigation with Crider.
In essence, Defendants contend based on Huang's declaration that, because Silgan anticipated that litigation over Crider's claims was reasonably likely to result, the primary motivating purpose behind Silgan's entire investigation into Crider's claims as it was actually conducted – including by engaging a forensic accountant and engaging and instructing third parties to conduct testing and communicating internally and with those third parties – was in anticipation of litigation and that, therefore, the primary motivating purpose for the creation of any documents in the investigation was impending litigation with Crider.
But, as Defendants' counsel acknowledged at oral argument, that would be true of both the withheld documents and the investigation documents and information that Silgan shared with Crider prior to the litigation related to the disputed black sulfide issues. As early as April 15, 2019, Crider's representative was asking Silgan's representative by email “if you have a timeline on when you will have your final report on all your investigation concerning both the 307 Peru Black Sulfide and 401 Costco Black Sulfide.” Dkt. No. 85-1 at 9 of 18 (Exhibit 1-B to the Declaration of Steven Huang). That reflects Silgan and Crider's mutual intent – or, at least, expectation – that Silgan would share investigation materials with Crider after March 7, 2019 (the date on which Silgan contends that it almost immediately anticipated that litigation would be coming later and on which, according to Silgan, Crider shared that same anticipation). See Dkt. No. 85-1 at 4 of 18; id. at 16-18 of 18.
*20 If Silgan's investigation documents that Silgan shared with Crider would otherwise have qualified as work product, Defendants – by voluntarily disclosing them to its potential litigation adversary – waived any work product protection of the pre-litigation investigation information and documents that Silgan shared with Crider. See Albritton, 2020 WL 11627275, at *9.
But, before and without needing to reach the follow-on question of waiver, the Court determines on this record that, even if Silgan began as early as March 7, 2019 to anticipate future litigation with Crider, aiding in possible future litigation was not the primary motivating purpose for Silgan's creating those investigation documents that it shared with Crider prior to the litigation.
As to the withheld documents at issue, in-house counsel was involved at some level from the beginning in March 2019. And so Silgan's later retaining outside counsel is marginally relevant (as perhaps is its later instituting a litigation hold) but not dispositive one way or the other as to whether Silgan's primary motivating purpose for creating every investigation document related to Crider's claims was to aid in possible future litigation.
As to Mr. Huang's level of involvement beginning in March 2019, he testifies
• that he has “been overseeing this dispute since this issue was brought to my attention in early March 2019” and that he “became involved here because of the amount of the claim at issue and the perceived litigious nature of Crider”;
• that, “[g]iven the amount of the potential claim, in May 2019, [he] put Silgan's insurance carriers on notice of Crider's claims”;
• that he “was also involved with an executive summary regarding the dispute being drafted in May 2019 that Silgan business representatives were preparing related to the claim and requested a copy to review for legal purposes because he believed litigation with Crider was forthcoming”; and
• that, “in May 2019, [he] personally coordinated engaging a forensic accountant, which was not routine” (where, “[d]uring [his] time with Silgan Containers, [Silgan had] never engaged a forensic accountant for routine warranty issues where litigation was not anticipated”) and which entailed involving the forensic accountant “in this case much earlier than we have ever involved a forensic accountant because of the size of this claim, and because [Mr. Huang] anticipated litigation.”
Dkt. No. 85-1 at 2-5 of 18.
None of that warrants a determination that the primary motivating purpose for Silgan's creating every investigation document related to Crider's claims was to aid in possible future litigation. As another judge “pointed out in a similar setting, a short, conclusory, after-the-fact affidavit from a party's employee cannot be sufficient to support a finding that preparation for litigation was a ‘primary motivating purpose’ for creating a particular document, because if it were, ‘any party could protect any document by submitting an after-the-fact declaration from one of its employees stating that the work was done in anticipation of litigation.’ ” Johnson v. Air Liquide Large Indus. U.S. L.P., No. 2:18-CV-259-WCB, 2019 WL 4256962, at *6 (E.D. Tex. Sept. 9, 2019) (quoting Secure Access, LLC v. Bank of Am. Corp., No. 6:10-cv-670, 2013 WL 12152470, at *3 (E.D. Tex. Mar. 14, 2013) (“This cannot be the correct legal result.”)).
*21 And the Court's in camera review of the 448 challenged documents listed on the Silgan Amended Clawback Privilege Log or Silgan Amended Privilege Log likewise – including the documents marked as Def_Priv_00690 and Def_Priv_00701, as described in the parties' January 11, 2023 and January 12, 2023 notices to the Court [Dkt. Nos. 104 & 105] – does not support a determination that the primary motivating purpose for Silgan's or its representatives' creating all of the 448 investigation documents related to Crider's claims was to aid in possible future litigation.
As to the drafts of the executive summary regarding the dispute being drafted in May 2019, Mr. Huang testifies that Silgan business representatives were preparing that summary and that he requested a copy to review for legal purposes because he believed that litigation with Crider was forthcoming. Dkt. No. 85-1 at 3 of 18. That supports a finding that one purpose – but not the primary motivating purpose – for the summary might have been litigation-related. And an in camera review of the related documents themselves does not support a finding that their contents are particularly focused on Silgan's anticipation of litigation with Crider.
The same is true of the Court's review of the November 2019 executive summary documents regarding the Peru Chicken & Turkey, which neither Mr. Huang's declaration nor the Silgan Amended Clawback Privilege Log even assert were prepared at counsel's direction.
Although the Silgan Amended Clawback Privilege Log includes the phrase “prepared in anticipation of litigation” (or something similar) in Defendants' description of these 448 documents, the Court's review of the documents reveals that nothing in those documents themselves supports a determination that the primary motivating purpose for Silgan's creating each one was to aid in possible future litigation – with only a few exceptions, as described below.
Rather, the Court's in camera review makes clear that Defendants base their work product protection claim as to each withheld document on their position that the primary motivating purpose behind Silgan's entire investigation into Crider's claims as it was actually conducted – including by engaging a forensic accountant and engaging and instructing third parties to conduct testing (which Mr. Huang states that Silgan would not have done, in the manner that it did, had Silgan not believed that there was a reasonable likelihood that litigation was forthcoming) and communicating internally and with those third parties – was in anticipation of litigation and so the primary motivating purpose for the creation of any related investigation documents was to aid in impending litigation with Crider.
But the facts that Silgan anticipated litigation (apparently at the outset of Crider's claims and complaints in March 2019) and that that anticipation may have affected Silgan's executives' or in-house counsel's motivation and decisions for how to approach an investigation that Silgan would, as a general matter, have needed to do and would have undertaken regardless of any expected future litigation are not enough to establish that the primary motivating purpose behind the creation of each of the 448 withheld documents was to aid in possible future litigation – as opposed to determining the cause of the issues that prompted Crider's complaints for purposes of evaluating and responding to those complaints and attempting to avoid (if necessary) the same or similar issues going forward.
Work product protection “requires causation in the sense of the purpose or motivation for the creation of documents – i.e., the intended use to which the documents were to be put – not causation in the sense of a ‘but for’ sequence of events or influences.” Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 114CV00006WCLSLC, 2018 WL 739870, at *4 (N.D. Ind. Feb. 6, 2018) (cleaned up). And, as another court has noted, “[n]ot every document generated by an internal investigation is protected by the work product doctrine simply because a company's internal investigation is coexistent with a present or anticipated lawsuit that is the same subject matter of the [investigation].” Steingraber, 2003 WL 21653414, at *5 (cleaned up). Even the fact than an in-house “counsel directed the [company's] investigators to undertake an investigation ... is not dispositive and does not necessarily lead to the conclusion that the primary motivating purpose behind the creation of the documents was to aid in possible future litigation.” Id. at *6.
*22 The Court notes that Crider has not challenged Defendants' work product claims over any documents as to which Mr. Huang is listed within the amended log entry. But, even as to documents for which the amended log entry does not mention Mr. Huang but that, on an in camera review, reflect discussions with or requests or comments from (or forensic accountant work requested and coordinated by) Mr. Huang, the Court's review of those documents along with Mr. Huang's declaration still does not support a determination that the primary motivating purpose for creating each document was to aid in possible future litigation.
As to the forensic accountants' documents or documents relating to their work, Mr. Huang states that Silgan's “engaging a forensic accountant was not routine” and did not occur “for routine warranty issues where litigation was not anticipated” and that the timing of engaging forensic accountants was motivated by “the size of this claim, and because [Mr. Huang] anticipated litigation.” Dkt. No. 85 at 3-4 of 18. But Mr. Huang does not testify that the forensic accountants' work and the creation of the related withheld documents was primarily directed to or motivated by aiding in possible future litigation.
Likewise, documents that reflect discussions or communications with Mr. Huang regarding the investigations of Crider's claims at issue here do not, without more, support a determination that aiding in possible future litigation with Crider over those claims was the primary motivating purpose for, among other things, creating reports of can counts or other chronologies or analyses or summaries of the volumes and values of the affected products or forwarding an agenda that, without more, references a claim at issue for meeting planning (or agenda) purposes – or for, in one instance, Mr. Huang's providing comments on a draft letter that predated March 2019.
But, based on the Court's in camera review, the Court will sustain Defendants' work product claim as to the documents marked as Def_Priv_00084 and Def_Priv_00085, which appear to be, on their face, related to draft responses or answers to requests for production or interrogatories.
The Court otherwise overrules Defendants' claims of work product protection as to the other 446 withheld documents still at issue as identified on Exhibit 43 to the Supplemental Declaration of Lindsey Mann (and as further clarified during the January 5, 2023 oral argument) and listed on the Silgan Amended Privilege Log or the Silgan the Amended Clawback Privilege Log.
As to Crider's assertion of subject-matter waiver of work product protection – which Crider presses only in the alternative if the Court determines that Defendants have otherwise met their burden to establish work product protection as to any of the challenged 448 documents – Crider contends that “Defendants waived work product by deliberately disclosing to Crider select documents detailing internal and third-party testing to determine the cause of black sulfide in the products at issue” as well as “investigation findings.” Dkt. No. 83 at 16-17.
Federal Rule of Evidence 502(a) provides that when a
disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
FED. R. EVID. 502(a). And Federal Rule of Evidence 502(b) provides that
*23 [w]hen made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
FED. R. EVID. 502(b).
Rule 502(a) “provides that a voluntary disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally results in a waiver only of the communication or information disclosed.” FED. R. EVID. 502(a) advisory committee's note. Under Rule 502(a), “a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.” Id. “Subject matter waiver under Rule 502(a) is limited ‘to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner.’ ” RLIS, Inc. v. Cerner Corp., No. 3:12-CV-209, 2014 WL 12599509, at *1 (S.D. Tex. Dec. 24, 2014) (quoting FED. R. EVID. 502(a) advisory committee's note). “It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver.” FED. R. EVID. 502(a) advisory committee's note (citing FED. R. EVID. 502(b)). But “a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation.” Id.
According to Crider, under Rule 502(a), “[f]airness requires that Defendants disclose all documents [from prior to June 26, 2020] concerning the investigation because it would be unfair to permit Defendants to selectively reveal what they claim is protected work product while shielding related documentation that may undermine or explain Defendants' disclosed findings,” where “[t]he cause of the black sulfide and related coating failures in Defendants' Containers forms the core of the parties' dispute”; “Defendants' investigation, including third-party testing, into the cause of the black sulfide will play a critical role in resolving Crider's claims”; and “[i]t would be unfair to allow Defendants to selectively reveal certain investigation findings yet withhold information that may undermine or help explain the factual basis for the investigation.” Dkt. No. 83 at 17 (cleaned up).
Crider asserts that “[i]t would be unfair to permit Defendants to reveal select investigation results while concealing other findings, which appears to include versions of the disclosed documents,” and that “Defendants' pattern of disclosing carefully selected information while concealing damning related findings shows that it would be unfair to allow Defendants to rely upon selectively revealed information while withholding mounds of related material.” Dkt. No. 89 at 5-6.
Defendants respond that “Silgan's disclosure of certain information to Crider prior to this litigation did not constitute subject matter waiver as to documents Silgan withholds as protected work product,” where “[d]isclosure of some documents does not automatically destroy work-product protection for other documents of the same character” and, under Rule 502(a), “waiver of ... work product extends to other undisclosed communications only if the waiver was intentional, the disclosed and undisclosed communications involve the same subject matter, and they ought to in fairness be considered together.” Dkt. No. 85 at 18 (cleaned up).
*24 Defendants assert that “[w]holesale subject matter waiver of work product protection should only be found in limited circumstances” and usually only “where the quality and substance of an attorney's work product have been directly placed at issue in the litigation by the party asserting the privilege,” such as “where a party deliberately disclosed work product in order to gain a tactical advantage and in instances where a party made testimonial use of work product materials and then attempted to invoke the work product doctrine to avoid cross-examination.” Dkt. No. 85 at 18-19 (cleaned up).
And Defendants contend that, here, “Silgan shared certain information with Crider prior to the litigation related to the disputed black sulfide issues, but Silgan did not disclose work product to gain a tactical advantage during the course of litigation” and “did not selectively disclose certain information to gain a tactical advantage, nor did it disclose certain information but not others to show compliance during litigation.” Dkt. No. 85 at 19. And, Defendants argue, “Silgan does not seek to use certain information to gain a tactical advantage while seeking to prevent Crider from obtaining that information,” and “Crider has access to information to the facts at hand and can obtain additional information at depositions.” Dkt. No. 85 at 20.
“As such, according to Defendants, “fairness does not dictate that Crider is entitled to all of Silgan's work product on the basis of subject matter waiver,” and, “[s]imply because Silgan shared certain information with Crider does not mean that Crider is entitled to all of Silgan's work product that touches on the same subject.” Dkt. No. 85 at 21 (emphasis in original).
The Court perhaps need not reach this alternative argument based on its rulings on Crider's primary arguments challenging Defendants' work product claims – which the Court is overruling as to all but two documents as to which the Court's in camera review supports its determination that the primary motivating purpose for those two documents' creation was to aid in possible future litigation.
But, in any event, under these circumstances, the Court finds that fairness does not require a finding under Rule 502(a) of subject-matter waiver of work product protection as to any remaining and withheld internal Silgan documents from prior to June 26, 2020 concerning the investigation of Crider's claims. On this record, the Court is not persuaded that any unfairness (as Crider claims) would ensue from Defendants' maintaining work product protection over the two documents listed and described above as to which the Court has sustained Defendants' work product claims or any other withheld documents as to which Crider has not challenged Defendants' work product claims.
Conclusion
For the reasons and to the extent explained above, the Court grants in part and denies in part Plaintiff Crider, Inc.'s Motion to Compel Production of Documents that Defendants Have Wrongly Designated as Attorney-Client Privileged and/or Work Product [Dkt. No. 83] and orders Defendants to, by January 18, 2023, produce to Plaintiff's counsel a copy of the 448 withheld documents still at issue as identified on Exhibit 43 to the Supplemental Declaration of Lindsey Mann (and as further clarified during the January 5, 2023 oral argument) and listed on the Silgan Amended Privilege Log or the Silgan the Amended Clawback Privilege Log, including the two initial emails on the email chain marked as Def_Priv_00690 – other than the documents marked but Def_Priv_00084 and Def_Priv_00085.
Under Federal Rule of Civil Procedure 37(a)(5), the Court determines that, considering all of the circumstances here, the parties will bear their own expenses, including attorneys' fees, in connection with Crider's MTC, in light of the Court's rulings laid out above and, as noted above, based on the extent to which Crider did – and did not – confer with Defendants before filing the MTC.
*25 Finally, although this Memorandum Opinion and Order may not contain any confidential information, the Court will, out of an abundance of caution, conditionally enter it under seal because the underlying motion papers quoted or cited above were filed under seal. And the parties are ORDERED to file a joint status report by January 27, 2023 that (1) sets forth their views on whether this Memorandum Opinion and Order contain any confidential information – and, if so, where – and should therefore remain sealed and (2), if at least one party asserts that this Memorandum Opinion and Order should remain sealed, attaches for the Court's consideration a proposed public version of the Memorandum Opinion and Order with any and all assertedly confidential information redacted.
SO ORDERED.

Footnotes

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[ ] issued by the court” because it “sets forth a reasoned explanation for [the] court's decision.” It has been written, however, primarily for the parties, to decide issues presented in this case, and not for publication in an official reporter, and should be understood accordingly.