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Johnson v. Air Liquide Large Industries U.S. L.P.

United States District Court, E.D. Texas, Marshall Division

September 9, 2019

WILMA L. JOHNSON, Plaintiff,
v.
AIR LIQUIDE LARGE INDUSTRIES U.S. L.P., Defendant.

          MEMORANDUM OPINION AND ORDER

          WILLIAM C. BRYSON UNITED STATES CIRCUIT JUDGE.

         Before the Court are Plaintiff's Motion to Compel Discovery Responses, Dkt. No. 53, and Defendant Air Liquide Large Industries U.S. L.P.'s Motion for Protection, Dkt. No. 61. The defendant's motion for protection is in substance a surreply brief in response to the plaintiff's motion to compel discovery responses and will be treated as such. Accordingly, the defendant's motion for protection is DENIED. The plaintiff's motion to compel discovery responses is GRANTED IN PART and DENIED IN PART.

         The plaintiff, Wilma L. Johnson, initially sought to compel responses to a number of discovery requests. In the course of the briefing on the motion to compel, the dispute was narrowed to four documents that were listed on the privilege log prepared by defendant Air Liquide Large Industries U.S. L.P. (“Air Liquide”). Those documents, identified on Air Liquide's privilege log as PRIV011, PRIV012, PRIV013, and PRIV015, consist of communications among various Air Liquide employees, including the Assistant General Counsel for the company. Air Liquide argues that the work-product doctrine and attorney-client privilege protect all four documents.

         BACKGROUND

         This is, quite literally, a “slip and fall” case. The complaint alleges that Ms. Johnson was employed as an outside sales representative for a company engaged in the sales and servicing of scales. On February 22, 2018, Ms. Johnson was on the premises of an Air Liquide plant, pursuant to an appointment. The purpose of her visit to the plant was to deliver sales brochures. When she arrived at the plant, she was instructed to walk up a paved walkway toward the control room. As she walked along the walkway, she slipped, fell, and fractured her right knee. Ms. Johnson subsequently retained counsel, and on March 19, 2018, Air Liquide received correspondence from her counsel identifying themselves as her legal representatives.

         Ms. Johnson filed this action in June 2018, asserting federal jurisdiction based on diversity of citizenship. At the close of discovery, she filed a motion to compel the production of various documents, including the four documents that are at issue in this motion. Air Liquide filed a response to the motion, which was followed by a reply from Ms. Johnson and a “Motion for Protection” by Air Liquide, which the Court has treated as a surreply brief. The Court held a telephonic hearing on September 4, 2019, and has since obtained and reviewed the subject documents in camera.

         The four documents that are in dispute are described as follows in Air Liquide's privilege log:

(1) a communication dated February 22, 2018, from Robert Harrison, identified as the “VP HSEQ” for Air Liquide, to three individuals: Kyle Harris, the Assistant General Counsel for Air Liquide; Roland Simons, the Health, Safety and Environmental Manager for Air Liquide; and Angela O'Quinn, who was at the time a Senior Health, Safety, and Environment Specialist for Air Liquide. Dkt. No. 58-1, at 2 (“PRIV011”).
(2) a communication dated March 5, 2018, from Hank Jeffcoats, a Production Manager for Air Liquide, to Mr. Harris. Dkt. No. 58-1, at 2 (“PRIV012”).
(3) a communication dated March 19, 2018, from Mr. Jeffcoats to four individuals: Mr. Harris; Mr. Harrison; James Stonecipher, an Operations Director for Air Liquide; and Robert Torres, a Plant Manager for Air Liquide. Dkt. No. 58-1, at 2 (“PRIV013”).
(4) an “incident notification” sent on February 22, 2018, from Ms. O'Quinn to Mr. Simons. Dkt. No. 58-1, at 2 (“PRIV015”).

         DISCUSSION

         1. The Applicable Law

         Rule 501 of the Federal Rules of Evidence provides that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” In this civil case, in which the Court's jurisdiction is invoked based on diversity of citizenship, Texas state law supplies the rule of decision for the claims and defenses raised by the parties. For that reason, Texas law governs Air Liquide's claim to the protection of the attorney-client privilege in this matter.

         Air Liquide's invocation of the work-product doctrine stands differently. The work-product doctrine is not, strictly speaking, a privilege, but instead is a qualified immunity from discovery. Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 514 n.2 (5th Cir. 1993); In re Naranjo, 768 F.3d 332, 345 n.16 (4th Cir. 2014); In re Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997); Admiral Ins. Co. v. U.S. Dist. Court for the Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989). For that reason, Rule 501 does not apply to claims for protection from discovery under the work-product doctrine. United States v. Airy, 518 F.3d 775, 782 n.4 (10th Cir. 2008); Anderson v. SeaWorld Parks & Entm't, Inc., 329 F.R.D. 628, 635 (N.D. Cal. 2019); Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-1515, 2018 WL 4154686, at *4 (E.D. Cal. Aug. 30, 2018); Melhelm v. Meijer, Inc., 206 F.R.D. 609, 614-15 (S.D. Ohio 2002); In re Combustion, Inc., 161 F.R.D. 51, 52 (W.D. La. 1995) (citing numerous cases). Instead, as in the case of other procedural rules, federal law applies to define the scope of the work-product doctrine in this diversity case. See Hanna v. Plumer, 380 U.S. 460 (1965); Sibbach v. Wilson & Co., 312 U.S. 1 (1941). Specifically, the federal work-product rule, which is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, governs the application of the work-product doctrine here. Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991); In re Prof'ls Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009); Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053-54 (8th Cir. 2000); Frontier Ref. Inc. v. ...


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