Adkisson v. Jacobs Eng'g Grp., Inc.
| Decision Date | 15 January 2021 |
| Docket Number | C/w No.: 3:13-CV-666-TAV-HBG,No.: 3:13-CV-505-TAV-HBG Lead Case,No.: 3:16-CV-636-TAV-HBG,No.: 3:15-CV-17-TAV-HBG,No.: 3:15-CV-460-TAV-HBG,No.: 3:16-CV-635-TAV-HBG,No.: 3:15-CV-420-TAV-HBG,No.: 3:15-CV-462-TAV-HBG,c/w No.: 3:14-CV-20-TAV-HBG,No.: 3:15-CV-274-TAV-HBG,: 3:13-CV-505-TAV-HBG Lead Case,: 3:15-CV-17-TAV-HBG,: 3:15-CV-274-TAV-HBG,: 3:15-CV-420-TAV-HBG,: 3:15-CV-460-TAV-HBG,: 3:15-CV-462-TAV-HBG,: 3:16-CV-635-TAV-HBG,: 3:16-CV-636-TAV-HBG |
| Parties | GREG ADKISSON, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. KEVIN THOMPSON, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. JOE CUNNINGHAM, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. BILL ROSE, Plaintiff, v. JACOBS ENGINEERING GROUP, INC., Defendant. CRAIG WILKINSON, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. ANGIE SHELTON, as wife and next of kin on behalf of Mike Shelton, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. JOHNNY CHURCH, Plaintiff, v. JACOBS ENGINEERING GROUP, INC., Defendant. DONALD R. VANGUILDER, JR., Plaintiff, v. JACOBS ENGINEERING GROUP, INC., Defendant. JUDY IVENS, as sister and next of kin, on behalf of JEAN NANCE, deceased, Plaintiff, v. JACOBS ENGINEERING GROUP, INC., Defendant. PAUL RANDY FARROW, Plaintiff, v. JACOBS ENGINEERING GROUP, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
Now before the Court is Plaintiffs' Motion to Compel Production of Documents [Doc. 683], filed on November 6, 2020. Defendant subsequently filed a Response [Doc. 701] in opposition, to which Plaintiffs filed a Reply [Doc. 706]. Additionally, the Court previously ordered Plaintiffs to produce the challenged documents for in camera inspection. [Doc. 710]. The Court has completed the in camera review of the challenged documents. Accordingly, for thereasons set forth below, Plaintiffs' Motion to Compel [Doc. 683] will be DENIED.
Plaintiffs seek [Doc. 683] an order compelling the production of certain documents that Defendant Jacobs Engineering has withheld based upon various claims of privilege and work product protection. Plaintiffs first review the procedural background of discovery, including Defendant's produced privilege logs and clawback notices, and assert that the requested discovery is necessary to conduct a Rule 30(b)(6) deposition of Defendant's corporate representative. Moreover, Plaintiffs claim that in reviewing the produced privilege logs and recent disclosures, "many entries—and corresponding privilege claims—lack legitimate bases for being shielded from discovery." [Id. at 7]. First, Plaintiffs allege that the titles of certain authors and recipients of email conversations, such as the inclusion of information technology personnel, undermines Defendant's claims of attorney-client privilege. Plaintiffs claim that several emails were forwarded to or sent from third parties, thus waiving any confidentiality when these emails were sent to third parties who do not share a common interest with Defendant. Plaintiffs assert that certain communications were improperly withheld based upon attorney-client privilege when Defendant's in-house legal counsel is acting as a business advisor, rather than legal counsel.
Next, Plaintiffs also maintain that Defendant improperly asserts that the work product doctrine shields several documents that were to be "provided to [an] attorney for purposes of seeking legal advice regarding [the] pending lawsuit." [Id. at 16]; see [Doc. 683-8]. Plaintiffs claim that this information gathered for attorneys is properly classified as fact work product, and that the work product protection should not apply. Here, Plaintiffs allege that the fact work product is relevant to the current litigation, that they have a substantial need to access such information, and that they would be unable to obtain this information from any other source without materialhardship. Therefore, Plaintiffs request that the Court order the disclosure of these communications, "in full or partially redacted to exclude an attorney's mental impressions, opinions, conclusions, judgments, or legal theories." [Doc. 683 at 16].
Lastly, Plaintiffs claim that certain documents and communications including TVA were improperly withheld under the common-interest exception. Plaintiffs allege that Defendant has failed to meet its burden of establishing a common interest with TVA, as TVA is not a party to this litigation; the status of any indemnification between Defendant and TVA is unclear; and Defendant and TVA do not have identical or nearly identical legal interests. Plaintiffs maintain that "[e]ven if Jacobs' role at the Kingston Ash Recovery Site was as a contractor hired by TVA, merely sharing common goals for the clean-up are fundamentally different than sharing common legal interests with respect to this litigation." [Id. at 19].
Defendant responds [Doc. 701] that its privilege log fully complies with the minimal showing required under applicable Sixth Circuit law, as the log describes, where applicable, the author, recipient, date, subject matter, and basis for withholding the document at issue. Defendant proceeds to address the various categories of documents challenged by Plaintiffs, first addressing communications in which Defendant's counsel was allegedly acting as a business advisor. Here, Defendant claims that Plaintiffs merely speculate that Defendant's in-house counsel was acting in a business capacity and provides specific arguments for the subject of the communications at issue.
Defendant then claims that while Plaintiffs fail to identify specific documents which appear to not be directed to or shared with any attorneys, "[i]t is well established that a communication can be privileged even if it is not authored or received by an attorney." [Id. at 16]. Defendant proceeds to identify twenty-six documents that do not include an attorney, and details that "these documents either include advice from an attorney or information gathered to formulate legaladvice," or "reflect restate, or discuss the legal advice an attorney provided." [Id. at 16-17]. When addressing communications distributed to non-attorney recipients, Defendant asserts that the attorney-client privilege in a corporate context also extends to communications between attorneys and corporate employees when the communication was for the purposes of obtaining legal advice. Additionally, Defendant provides specific references to the documents at issue involving certain information technology personnel.
Defendant then addresses Plaintiffs' arguments regarding fact work product and claims that Plaintiffs have failed to meet their burden of showing a substantial need for this information, as well as that they would be unable to obtain it without undue hardship. Defendant asserts that Plaintiffs "offer no evidence whatsoever that they cannot obtain the equivalent materials elsewhere or even attempt to explain what they believe is critically missing" from the produced discovery. [Id. at 20]. Defendant then responds to Plaintiffs' claim that the common interest protection is inapplicable, asserting that the common interest was in anticipated litigation, that Defendant has previously produced a significant amount of discovery reflecting communications between TVA and Defendant, as well as that Plaintiffs know that the applicable contract between TVA and Defendant provides for indemnification.
Plaintiffs' subsequent Reply [Doc. 706] largely focuses on the procedural posture behind their requested Rule 30(b)(6) deposition, as well as the need for in camera inspection of the privileged documents, which the Court has already ordered
"Where a party seeks to withhold otherwise discoverable information under a claim of privilege or the work-product doctrine, the withholding party must expressly assert the claim and 'describe the nature of the documents, communications, or tangible things not produced ordisclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.'" Ajose v. Interline Brands, Inc., No. 3:14-CV-1707, 2016 WL 6893866, at *1 (M.D. Tenn. Nov. 23, 2016) (quoting Fed. R. Civ. P. 26(b)(5)(A)).
"In a diversity case, the court applies federal law to resolve work product claims and state law to resolve attorney-client claims."1 In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) (citing Fed. R. Evid. 501); see, e.g., Adkisson v. Jacobs Eng'g Grp., Inc., 342 F. Supp. 3d 791, 798 n.4 (E.D. Tenn. 2018) ().
"The party asserting the privilege bears the burden of proving that the privilege is applicable." Leazure v. Apria Healthcare Inc., No. 1:09-CV-224, 2010 WL 3397685, at *1 (E.D. Tenn. Aug. 26, 2010) (citing State ex rel. Flowers v. Tennessee Trucking Ass'n Self Ins. Group Trust, 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006)); see, e.g., Ajose, 2016 WL 6893866 at *1 () (citing United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006); Ross v. City of Memphis, 423 F.3d 596, 606 (6th Cir. 2005)).
As stated above, Rule 501 of the Federal Rules of Evidence provides that in diversity cases, "state law governs privilege regarding a claim or defense for which state law supplies the rule ofdecision." "As well as being recognized at common law, the attorney-client privilege is also codified in Tennessee." EPAC Techs., Inc. v. Thomas Nelson, Inc., No. 3:12-CV-00463, 2015 WL 13729725, at *2 (M.D. Tenn. Dec. 1, 2015) (citing Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002)). The applicable state statute provides that:
No attorney,...
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