United States District Court, E.D. Texas, Marshall Division
WILMA L. JOHNSON, Plaintiff,
AIR LIQUIDE LARGE INDUSTRIES U.S. L.P., Defendant.
MEMORANDUM OPINION AND ORDER
WILLIAM C. BRYSON UNITED STATES CIRCUIT JUDGE.
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.
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.
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
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
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
(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”).
The Applicable Law
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.
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.