Culliver v. BP Expl. & Prod., Inc.
Culliver v. BP Expl. & Prod., Inc.
2022 WL 19568968 (N.D. Fla. 2022)
October 13, 2022
Cannon, Hope T., United States Magistrate Judge
Summary
The court found that John Brown's NRDA work was protected by the work product doctrine and Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure, including any ESI generated by Brown for BP's counsel. Plaintiff's arguments that the NRDA work should not be viewed as developed in anticipation of litigation and that BP had waived any claim of privilege regarding NRDA data were rejected.
Additional Decisions
Vincent CULLIVER, Plaintiff,
v.
BP EXPLORATION & PRODUCTION, INC., et al., Defendants
v.
BP EXPLORATION & PRODUCTION, INC., et al., Defendants
Case No. 3:21cv4942-MCR-HTC
United States District Court, N.D. Florida, Pensacola Division
Signed October 13, 2022
Counsel
Charles David Durkee, Jason Tyler Clark, Downs Law Group, Miami, FL, Alexander J. Blume, Jason Matthew Larey, Downs Law Group PA, Coconut Grove, FL, for Plaintiff.Scott Christopher Seiler, Devin Chase Reid, Liskow & Lewis, New Orleans, LA, Francis M. McDonald, Jr., Orlando, FL, Kevin Michael Hodges, Williams & Connolly LLP, Washington, DC, Vanessa Anne Barsanti, Kirkland & Ellis LLP, Chicago, IL, for Defendants BP Exploration & Production Inc., BP American Production Company.
Cannon, Hope T., United States Magistrate Judge
ORDER
*1 Before the Court are two related motions—Plaintiff Vincent Culliver's motion to compel discovery from non-party John Brown,[1] ECF Doc. 32, and Brown's motion for protective order, ECF Doc. 49. Brown responded in opposition to Plaintiff's motion, ECF Doc. 47, and Plaintiff filed a reply, ECF Doc. 59, as well as a response in opposition to Brown's motion, ECF Doc. 61. Upon consideration of Plaintiff's and Brown's submissions, and after oral argument, Plaintiff's motion to compel is DENIED and Brown's motion for protective order is GRANTED.
I. BACKGROUND
On April 20, 2010, an unprecedent oil spill occurred in the Gulf of Mexico when the Deepwater Horizon mobile offshore oil-drilling rig exploded and subsequently sank, resulting in the discharge of millions of barrels of oil over a period of 87 days before the well was capped. During the months immediately following the explosion, large scale clean-up efforts to address the oil spill occurred both on land and at sea.[2] Plaintiff was one of many workers hired to perform clean-up work. Plaintiff alleges, while engaged in such work for New Horizons LLC from May 2010 to September 2010, he was exposed to crude oil and chemical dispersants that harmed him. Specifically, Plaintiff complains his exposure to the toxins caused him physical harm, including by being a substantial contributing cause of his 2019 diagnosis of Prostate Acinar Adenocarcinoma. Plaintiff sues BP Exploration & Production and BP America Production Company (collectively, “BP”).
The federal and state governments'—as well as BP's—response to the oil spill was guided by the Oil Pollution Act of 1990 (“OPA”). “Among other things, [the OPA] sets up a federal system to clean up oil spills and compensate victims and establishes a national planning and response system to ensure effective and immediate removal of oil spill in U.S. waters.” Gulf Restoration Network v. Jewell, 161 F. Supp. 3d 1119, 1124 (S.D. Ala. 2016) (citation omitted). The trustees, which included representatives of the federal and affected state governments, assessed damages to natural resources caused by the discharge of oil and developed and implemented “a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship.” Id. On December 15, 2010, the United States filed a complaint seeking to establish BP's liability for the removal and restoration costs, which was resolved by a 2016 consent decree between BP, the United States, and the affected states. See United States v. BP Exploration & Prod. Inc., et al., No. 2:10cv4536-CJB-JCW (E.D. La. Apr. 4, 2016).
*2 BP retained Exponent Inc., a scientific consulting firm, in May 2010 to perform certain scientific analyses relating to the oil spill, response, and corresponding litigation. ECF Doc. 47-4. Brown was a scientist with Exponent but left the company in February 2022. Id. Brown's early work focused on assisting in the spill response under the leadership of the Unified Area Command (“UAC”).[3] However, around June 2011, Brown transitioned to assisting BP's natural resource damage assessment (“NRDA”) team. ECF Doc. 47-1 at 15.
Plaintiff seeks to compel Brown to produce documents and provide additional testimony, arguing Brown: (1) failed to comply with the Federal Rules of Civil Procedure by not obtaining his emails from Exponent and BP in response to a subpoena; and (2) improperly asserted privilege during his deposition regarding the work he performed for BP during the NRDA. ECF Docs. 32, 59, 61. As discussed further below, the Court finds: (1) Brown was not required to ask Exponent and BP for his emails because the emails were not in his “possession, custody, or control”; and (2) Brown was not required to answer questions at a deposition regarding the NRDA work he performed for BP, as that information is protected by the work product doctrine and Fed. R. Civ. P. 26(b)(4)(D).
II. DISCUSSION
A. Production of Documents
On May 24, 2022, Plaintiff served Brown with a subpoena to testify at a deposition on July 15, 2022. The subpoena also requested that Brown produce “all communications” he had with BP and the Center for Toxicology and Environmental Health from April 20, 2010, to April 20, 2015; the request indicated it should “be read to include a search of your BP, Exponent, and personal email addresses.”[4] ECF Doc. 32-2 at 5.
Three days before the deposition, BP's counsel represented to Plaintiff's counsel that “Brown has informed us that he has searched for materials responsive to the topics listed in Attachment ‘A’ to the deposition notice and has not found any such documents or communications.” ECF Doc. 47-5 at 2. At the deposition, Brown stated he did not ask BP or Exponent to search for responsive emails.
Under Rule 45, a person is required to produce documents in their “possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). “Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). Several courts in this Circuit, including in this District, have broadly defined the concept of control to include the practical ability to obtain documents. See, e.g., In re Sergeeva, No. 1:13-cv-03437-SCJ-RGV, 2013 WL 12169388, at *8 (N.D. Ga. Nov. 22, 2013), objections overruled, No. 1:13-CV-3437-LMM-RGV, 2015 WL 12866970 (N.D. Ga. Feb. 6, 2015) (“Instead, ‘control’ has been ‘construed broadly by the courts’ to include not just a legal right, but also a ‘practical ability to obtain the materials’ on demand.”); Costa v. Kerzner Int'l Resorts, Inc., 277 F.R.D. 468, 471 (S.D. Fla. 2011) (“Control, therefore, does not require that a party have legal ownership or actual physical possession of the documents at issue; indeed, documents have been considered to be under a party's control (for discovery purposes) when that party has the ‘right, authority, or practical ability to obtain the materials sought on demand.’ ”).
*3 The practical ability to obtain information from another does not simply mean having access to the information. See In re Disposable Contact Lens Antitrust, 329 F.R.D. 336, 431 (M.D. Fla. 2018). Instead, “inherent in the ‘practical ability’ test is some legal right of control over the information possessed,” through some legal or contractual relationship, such as the existence of an employer-employee relationship. Id.
Plaintiff suggests Brown was obligated to ask Exponent and BP for access to the email addresses he previously used at each company. Plaintiff also suggests: (1) Kirkland & Ellis's representation of both Brown and BP demonstrates Brown had the practical ability to obtain the emails from his BP email address; and (2) Brown waived any objection to the request for the Exponent and BP emails by not raising it in a timely manner. In response, Brown argues he is not currently employed by either Exponent or BP and, thus, does not have the legal right to obtain the emails held by those companies.
The Court agrees with Brown. Brown cannot be compelled to produce documents he does not have a legal right to obtain.[5] Nothing in the record indicates Exponent or BP were legally obligated to provide Brown—who currently has no employment relationship with either company—with the emails upon his demand. See Siegmund v. Xuelian Bian, 746 F. App'x 889, 891 (11th Cir. 2018) (“The district court also did not abuse its discretion ... in denying Siegmund's Fed. R. Civ. P. 37(a) motion to compel defendant directors to respond to Siegmund's requests for production of Linkwell documents. Siegmund was unable to meet his burden of establishing that the defendant directors, having previously resigned as Linkwell directors, retained sufficient ‘control’ of Linkwell documents to be able to produce them.”) (citations omitted). And Plaintiff has identified no caselaw which suggests a former employee in Brown's position is required to obtain documents from his former employer.
At oral argument, Plaintiff focused on the fact Kirkland & Ellis represents both Brown and BP, suggesting this constitutes a special circumstance which puts the onus on Brown to demand that his counsel retrieve the emails from BP. However, Plaintiff does not cite any cases to support such a proposition and Rule 45 provides only that a subpoena may command a person to produce documents “in that person's possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). Rule 45 does not explicitly or implicitly require the production of documents from another client of that person's counsel.[6]
*4 Furthermore, accepting Plaintiff's position in this dispute would require the Court to arbitrarily determine the reasonableness of a nonparty's efforts to obtain documents from a party or another nonparty. For example, would one request by Brown to Exponent and BP have been sufficient? Or should he be required to follow up and press those companies for access to the emails if they were noncommittal? Rather than making the Court the arbiter of whether a nonparty has a practical ability to obtain documents from another entity and whether the nonparty made reasonable efforts to do so, the Court concludes that, under these circumstances, the burden should fall on the Plaintiff—rather than a nonparty—to seek the discovery either through a subpoena or a request for production. And Plaintiff does not dispute he has alternative means of obtaining the emails. Plaintiff may issue a subpoena to Exponent and a request for production to BP for the emails. Indeed, Plaintiff admitted he previously issued a subpoena to Exponent and the documents he sought from Brown may be among the documents he received or expects to receive in response to the subpoena.[7]
Plaintiff also argues Brown waived his right to contest producing emails from his Exponent and BP email addresses by not objecting to the subpoena within 14 days. See Fed. R. Civ. P. 45(d)(2)(B). Brown contends: (1) he complied with the subpoena, as Plaintiff's request for a search of “your BP, Exponent, and personal email addresses” only required him to search the emails to which he had access; and (2) waiver does not apply here because Brown does not have possession, custody, or control of the Exponent or BP emails.
Although it may have been more pragmatic and efficient for Brown to object to the subpoena before the deposition, his failure to do so does not result in waiver. Finding waiver applicable in these circumstances would create an untenable situation where courts would order nonparties to produce documents which they cannot. See Duarte v. St Paul Fire & Marine Ins. Co., No. EP-14-CV-305-KC, 2015 WL 7709433, at *5 (W.D. Tex. Sept. 25, 2015) (rejecting “Defendants' argument that possession, custody, or control is an objection that can be waived because the practical effect of that ruling would result in a party being compelled to produce that which they cannot, ultimately resulting in a continued violation of a court order for failing to comply”). Accordingly, Plaintiff's motion to compel Brown to produce documents from his Exponent and BP email addresses is DENIED.
B. Deposition Testimony
Upon the advice of counsel, Brown refused to answer questions regarding his work for BP related to the NRDA from 2011 to 2015, asserting the information is protected from disclosure by the attorney-client privilege and work product doctrine.[8] ECF Doc. 47 at 3. BP represents Brown helped “BP's lawyers prepare for natural resource damages litigation initiated by the federal and state governments.” ECF Doc. 47 at 19.
Under the work-product doctrine, “a party may not [ordinarily] discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). Likewise, Fed. R. Civ. P. 26(b)(4)(D) provides that “facts known or opinions held” by a non-testifying expert retained in anticipation of litigation are not discoverable in a deposition absent “exceptional circumstances under which it is impracticable for the [other] party to obtain facts or opinions on the same subject by other means.” “Rule 26(b)(4)(D) and the work product doctrine are ... designed to prevent parties from obtaining a free ride on the investigative efforts initiated or conducted by their opponents' attorneys in the course of litigation.” Comm'r of Dep't of Plan. & Nat. Res. v. Century Aluminum Co., 279 F.R.D. 317, 319 (D.V.I. 2012) (citation omitted). “The law is well settled that the ‘party claiming a privilege has the burden of proving its applicability.’ ” Goosby v. Branch Banking & Tr. Co., 309 F. Supp. 3d 1223, 1232 (S.D. Fla. 2018) (quoting Bridgewater v. Carnival Corp., 286 F.R.D. 636, 638 (S.D. Fla. 2011)).
*5 Plaintiff contends the work-product doctrine does not shield all of Brown's potential testimony because his NRDA work was not done in anticipation of litigation.[9] “In the Eleventh Circuit, contrary to most circuits (which follow the ‘because of’ test), district courts have mostly either used the primary purpose or dual purpose test” when evaluating whether documents or information were developed in anticipation of litigation. Goosby, 309 F. Supp. 3d at 1234 (noting “the Eleventh Circuit has not established a definitive test for courts to follow”). “Under the primary purpose test, a document is deserving of work product protection ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” Id. at 1233 (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981)). “Under the dual purpose test, dual-purpose documents are protected from disclosure if, taking into account the facts surrounding their creation, their litigation purpose so permeates any non-litigation purpose that the two purposes cannot be discretely separated from the factual nexus as a whole.” Id. (quotation marks and citation omitted).
The Court concludes that, under either the primary purpose or dual purpose test, Brown has met his burden of establishing his NRDA work is protected by Rule 26(b)(4)(D) and the work product doctrine. In addition to the representations in the response to Plaintiff's motion—which include the assertion that BP's “lawyers conducted separate, privileged analyses to help prepare defenses to federal and state claims against BP for natural resource damages,” ECF Doc. 47 at 21–22—BP has submitted its agreement with Exponent, under which Brown worked, as well as an August 12, 2022, letter from BP's counsel to Plaintiff's counsel which describes the nature of Brown's work. The letter states:
Brown's role in the NRDA work was to assist BP in identifying the ‘fingerprint’ of Macondo oil in different stages of oil weathering, including tar balls and tar mats, and to evaluate samples to determine whether they matched the fingerprint of Macondo oil, or came from some other source. The work is useful in the emergency response because it helped determine when cleanup of Macondo oil is complete. It was also needed for the natural resource damage assessment because there are many other sources of weathered petroleum and tar balls in the Gulf of Mexico, including natural oil seeps, and oil leaking from the damaged MC-20 well. Part of Mr. Brown's work was intended to distinguish Macondo oil and tar balls from those other sources for NRD assessment and litigation purposes.
ECF Doc. 32-4 at 4–5. The May 20, 2010, engagement letter between Exponent and BP (acting through Arnold & Porter LLP) reveals: (1) Arnold & Porter hired Exponent “as an integral part of [their] advice and defense preparation”; and (2) Exponent could be called upon “to provide information, prepare studies or reports, participate in meetings, review materials and undertake other tasks for [Arnold & Porter].” ECF Doc. 47-4 at 2–3.
These submissions, combined with Brown's testimony that he transitioned from working for the UAC to working for BP's NRDA team, ECF Doc. 47-1 at 11, 15, are sufficient to demonstrate Brown is a non-testifying expert retained in anticipation of litigation and, thus, the facts known or opinions held by him while he performed NRDA work are not discoverable through a deposition.[10] The record before the Court indicates the primary purpose for Brown's work after June 2011 was to aid in litigation related to the NRDA, though that work may have also been helpful for environmental restoration. Indeed, before Brown began such work, the United States and several states had filed civil actions against BP for natural resource damages under the OPA. ECF Doc. 47 at 6. Although Fed. R. Civ. P. 26(b)(4)(D) contemplates such information may be discoverable in “exceptional circumstances,” Plaintiff has not advanced that argument, and the Court will not address it.
*6 Furthermore, the fact Brown worked for the UAC and provided information to the government before transitioning to NRDA work does not alter this conclusion. Courts have recognized “[i]t is possible for a witness to wear two hats: one as a specially employed expert in anticipation of litigation and one as an ordinary witness.” Essex Builders Grp., Inc. v. Amerisure Ins. Co., 235 F.R.D. 703, 705 (M.D. Fla. 2006) (citation omitted). Plaintiff is entitled to question Brown regarding his work for the UAC—which Plaintiff did at the July 15 deposition—but Plaintiff is not entitled to question Brown regarding the NRDA work he performed for BP in anticipation of litigation. See Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984, 994 (D.C. Cir. 1979) (affirming district court's finding that person initially retained as a general energy advisor but subsequently tasked with advising company in anticipation of litigation could not be deposed regarding matters after the reassignment); In re Shell Oil Refinery, 134 F.R.D. 148, 150 (E.D. La. 1990) (expert employees could only be deposed regarding facts and opinions held prior to being specially employed on a post-accident investigation team that was formed in anticipation of litigation). And the protection of Rule 26(b)(4)(D) extends to any data or analysis Brown may have generated for BP's counsel, as the rule guards any “facts known or opinions held” by a non-testifying expert. See Brasfield & Gorrie, LLC v. Hirschfeld Steel Grp. LP, No. 2:20-cv-00984-LSC, 2021 WL 5449203, at *5 (N.D. Ala. Nov. 22, 2021) (holding Rule 26(b)(4)(D) prohibited party's deposition of a non-testifying expert, because the party sought discovery regarding information reviewed and methodologies utilized, which related “precisely to [its] role as a non-testifying expert engaged in anticipation of litigation”).
Plaintiff raises several challenges to the assertion of privilege. First, Plaintiff argues Brown's NRDA work for BP is not entitled to blanket privilege protection because the NRDA's main purpose “is to restore natural resources in a cooperative manner” and it “is not primarily concerned with anticipated litigation.” ECF Doc. 59 at 2. Based on this view of the NRDA, Plaintiff claims the scientific data the NRDA process relies upon should not be viewed as developed in anticipation of litigation. Id. at 3. Plaintiff suggests he should be allowed to inquire into the “non-privileged or non-confidential aspects of Brown's NRDA work.” Id. at 4.
To support this argument, Plaintiff relies on United States v. CITGO Petroleum Corp., No. 2:08–cv–00893, 2010 WL 1754167, at *5 (W.D. La. Apr. 29, 2010). In CITGO, however, a corporation sought discovery from the United States and Louisiana; the court held the work-product doctrine did not apply, finding “that although one purpose for the creation of the information sought by CITGO was the anticipation of litigation, the information was developed, at the same time, for the equally important purpose of managing and restoring the environment and natural resources of the State of Louisiana and the United States.” Id. Plaintiff fails to acknowledge that under the OPA, the United States and Louisiana were trustees with the statutory obligation “to assess damages to natural resources caused by the discharge of oil and ‘develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship.’ ” Jewell, 161 F. Supp. 3d at 1124 (quoting 33 U.S.C. § 2706 (c)(1) & (c)(2)). Here, BP is invoking the work-product doctrine; Plaintiff has not shown a corporation like BP shares the same responsibilities as a governmental entity with respect to natural resource management either generally or within the specific context of an NRDA.[11]
*7 Next, Plaintiff argues “BP has opened the door to discovery of the NRDA data because their experts rely on data and publications created during the NRDA process or that utilize BP's NRDA data sets.” ECF Doc. 59 at 8. Plaintiff claims BP: (1) cannot have its experts “rely on NRDA data, and make opinions about its reliability, while also refusing discovery on NRDA information necessary to assess the veracity of these opinions;” and (2) has waived any claim of privilege regarding NRDA data and the scientific process behind the data's generation by disclosing experts who relied on the data. Id. at 8–9.
However, at oral argument, Plaintiff admitted he did not know if any of Brown's work had been incorporated into the reports of BP's expert witnesses. Regardless, Rule 26(b)(4)(D) “itself does not address waiver, and the courts have generally held that partial disclosure of a non-testifying expert's work product does not waive a party's right to withhold production of the expert's undisclosed work product.” Hollinger Int'l. Inc. v. Hollinger Inc., 230 F.R.D. 508, 522 (N.D. Ill. 2005) (citations omitted). Thus, even assuming some of Brown's NRDA work had been disclosed as raw data which was relied upon by BP's experts, such disclosure would not entitle Plaintiff to inquire into the rest of his NRDA work. See id. (disclosure of certain non-testifying expert's findings “did not automatically forfeit the protection of Rule 26(b)(4)(B) as to the withheld information or place the entirety of his work at issue in this case”). Moreover, it appears all the data the experts relied upon can be accessed by Plaintiff, as it is publicly available on the internet.
Based on the record before the Court, Brown has established the NRDA work he performed for BP after June 2011 is protected from disclosure under Rule 26(b)(4)(D) and Plaintiff is not allowed to inquire into that work through a deposition. As BP indicated to Plaintiff following the July 15 deposition, if he becomes “aware of any NRDA work that is a matter of public record and/or [he learns] of through [the] production of documents, that [he thinks] Brown may have knowledge of,” he may raise the issue with BP. ECF Doc. 47-7 at 2.
Accordingly, it is ORDERED:
1. Plaintiff's Motion to Compel Discovery from John Brown and for Sanctions, ECF Doc. 32, is DENIED.
2. John Brown's Motion for Protective Order, ECF Doc. 49, is GRANTED.
3. John Brown is not required to provide Plaintiff with: (1) emails he sent and received at his Exponent and BP email addresses; or (2) information about the NRDA work he performed for BP after June 2011.
DONE AND ORDERED this 13th day of October 2022.
Footnotes
At the October 7, 2022, hearing on the motion, Plaintiff withdrew his request for sanctions.
In the aftermath of the oil spill, a firestorm of claims were filed against BP, which were initially part of a multi-district litigation (“MDL”) in Louisiana. A Settlement Agreement was entered in the MDL, which allowed personal injury plaintiffs with injuries diagnosed by April 16, 2012, to file a claim and personal injury plaintiffs with “later manifested physical conditions” to file separate litigation, known as the back-end litigation option or “BELO.” For a more complete history and in-depth discussion of the oil spill and MDL, see N.D. Fla. Case No. 3:19cv963, Master Doc. 97.
“On April 23, 2010, the [UAC]—an organization that included members from the United States Coast Guard, BP, and others—was created to oversee the management of the oil spill. The UAC had authority to set overall strategy and priorities, allocate critical resources, and ensure that objectives were met and strategies followed.” Kaminski v. BP Exploration & Prod. Inc., 975 F. Supp. 2d 1220, 1223 (M.D. Fla. 2013) (citations omitted).
Although Brown was not an employee of BP, he was temporarily assigned a BP email address. ECF Doc. 47 at 6.
The undersigned's decision in Diaz v. Goat Express, LLC, No. 3:20cv3986-TKW-HTC, 2021 WL 8199899 (N.D. Fla. June 1, 2021), does not conflict with this conclusion, as there the party claiming to not have certain tax and income related documents had identified those documents as being in its control as part of its initial disclosures, and that party could clearly access at least some of the documents from the IRS.
If the Court adopted Plaintiff's view of Rule 45, counsel for an individual receiving a subpoena could be forced to retrieve documents from counsel's other clients, which could include a variety of different individuals or corporations. That interpretation of Rule 45 is unworkable, illogical, and would impose a burden on counsel not contemplated by the Rule.
Plaintiff also acknowledged some of the emails may be among the documents previously produced by BP.
Plaintiff also takes issue with Brown's failure to disclose his personal email address at the deposition. ECF Doc. 32 at 4. After Plaintiff filed his motion to compel, BP's counsel provided the email address to Plaintiff on September 19, 2022. ECF Doc. 47-6 at 2.
Plaintiff also argues Brown should have immediately sought a protective order following the deposition in order to preserve the claim of privilege. While the Court agrees Brown could have immediately moved for a protective order, Brown and the parties continued to confer regarding the issue after the deposition, and Brown's failure to do so does not constitute a waiver of the protections afforded by Rule 26(b)(4)(D). See Thomas v. Rockin D Marine Servs., LLC, No. 12–1315, 2013 WL 2459217, at *3 (E.D. La. June 6, 2013) (“[T]he majority of other recent cases have routinely reached the merits of a deposition dispute[ ] regardless of technical compliance with filing requirements.”) (citation omitted).
Brown testified he regularly communicated with people from BP. ECF Doc. 47-1 at 6, 8.
The other case Plaintiff cites to support his argument that damage assessments are not protected as work product also involved a business seeking documents from a state government. See People ex rel. Wheeler v. S. Pac. Transp. Co., No. 2:08–cv–00893, 1993 WL 816066 (E.D. Cal. Sept. 2, 1993) (holding documents prepared by state employees after train derailment were not protected by work product doctrine because employees were not retained or appointed for purposes solely related to the litigation, and employees “would be performing environmental damage assessments and the like as a normal function of their job duties as well, or as a result of the statutorily mandated duty to perform such assessments”). Plaintiff also accuses BP of hypocrisy because it previously relied on CITGO and Wheeler to advocate for disclosure of NRDA information in a different proceeding. ECF Doc. 59 at 6. Plaintiff's accusation is unfounded though, as BP was seeking NRDA information from the United States, which is supported by those cases.