United States District Court, S.D. Texas, Galveston Division
LAURA HECKMAN, Plaintiff.
TRANSCANADA USA SERVICES, INC., ET AL., Defendants.
M. EDISON UNITED STATES MAGISTRATE JUDGE
order addresses whether certain documents have been properly
withheld by TransCanada USA Services, Inc. (“TC
USA”) on the basis of the attorney-client and work
Laura Heckman (“Heckman”) has brought claims for
gender and age discrimination and retaliation against
Defendants TC USA, TransCanada Corporation, and TransCanada
Pipelines Limited. It is undisputed that Heckman filed a
complaint of workplace discrimination against a high-ranking
TC USA executive on January 24, 2018, and was terminated five
days later on January 29, 2018. Heckman claims the chronology
says it all: she was terminated in retaliation for lodging
the complaint. TC USA vehemently disagrees, arguing that when
Heckman made her official complaint of workplace
discrimination on January 24, 2018, TC USA had already made
the decision to fire her on January 29, 2018.
lawsuit, Heckman served TC USA with requests for production.
TC USA timely responded, objecting to the production of
documents protected by the attorney-client and work product
privileges. TC USA put together a privilege log, identifying
those documents being withheld on the basis of privilege and
providing basic information about each document, including
the date, author, recipient, and a brief explanation as to
why the document is allegedly privileged. At my request, TC
USA provided the documents for an in camera review.
support its claim of privilege, TC USA also submitted two
declarations. One of those declarations is from TC USA's
counsel, attesting to the accuracy of the descriptions on the
privilege log and identifying those individuals listed on the
privilege log who are licensed attorneys. The other
declaration is from Caroline Lafond (“Lafond”),
TC USA's Director of Human Resources. In her declaration,
Lafond testifies that TC USA has standard procedures for
investigating allegations of workplace discrimination. In the
usual situation, the HR Governance group, which is not
comprised of lawyers, conducts an investigation to determine
the appropriate course of action. That standard procedure was
not, Lafond observes, followed when it came to investigating
Heckman's discrimination complaint. Instead, Lafond says
that the General Counsel's Internal Audit group took over
the investigation, gathering the information necessary to
provide legal analysis and advice concerning Heckman's
complaint and planned termination. TC USA also hired outside
counsel to provide legal advice for the investigation,
something the company did not ordinarily do when
investigating workplace discrimination complaints. According
to Lafond, “[t]he primary motivation for deviating from
the normal procedures was to prepare for anticipated
litigation.” Dkt. 69-1 at 4. “TC USA was
sensitive to the possibility of litigation resulting from Ms.
Heckman's allegations should TC USA proceed with the
planned termination, ” she added. Id. The
LaFond declaration further states that TC USA anticipated on
January 24, 2018, that litigation could occur.
Legal Standard for Work Product Privilege
by the United States Supreme Court in Hickman v.
Taylor, 329 U.S. 495 (1947), the work product doctrine
is now codified in Federal Rule of Civil Procedure 26. Under
Rule 26, a party ordinarily 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)”
absent a showing of substantial need and inability to obtain
their substantial equivalent without undue hardship.
Fed.R.Civ.P. 26(b)(3)(A). “The purpose of the work
product privilege is to further the interests of clients and
the cause of justice by shielding the lawyer's mental
processes from his adversary.” In re Grand
Jury Subpoena, 220 F.3d 406, 408 (5th Cir.
2000) (internal quotation marks and citation omitted).
burden of demonstrating the applicability of the work product
privilege rests on the party seeking its protection. See
Hodges, Grant & Kaufmann v. United States, 768 F.2d
719, 721 (5th Cir. 1985). The Fifth Circuit has described the
standard for determining whether a document has been prepared
in anticipation of litigation:
It is admittedly difficult to reduce to a neat general
formula the relationship between preparation of a document
and possible litigation necessary to trigger the protection
of the work product doctrine. We conclude that litigation
need not necessarily be imminent, as some courts have
suggested, as long as the primary motivating purpose behind
the creation of the document was to aid in the possible
United States v. Davis, 636 F.2d 1028, 1040 (5th
Cir. 1981) (citations omitted). “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.'” Navigant
Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477
(N.D. Tex. 2004) (quoting Elec. Data Sys. Corp.
v. Steingraber, No. 4:01-CV-225, 2003 WL 21653414, at *5
(E.D. Tex. July 9, 2003)). “If the document would have
been created without regard to whether litigation was
expected, it was made in the ordinary course of business and
is not protected by the work product doctrine.”
Moser as Trustee of Tr. Under Amended Joint Plan of
Liquidation of Tango Transport, LLC v. Navistar Int'l
Corp., No. 98-C-3952, 2019 WL 236722, at *3 (E.D. Tex.
May 26, 2019). Put another way, “[t]he work product
doctrine is not an umbrella that shades all materials
prepared by a lawyer, or agent of the client, and the
doctrine excludes materials assembled in the ordinary course
of business.” United States v. Homeward
Residential, Inc., No. 4:12-CV-461, 2016 WL 1031154, at
*3 (E.D. Tex. Mar. 15, 2016) (internal quotation marks,
citation, and brackets omitted).
Applicability of Work Product Privilege
USA's privilege log identifies roughly 50 documents it
contends were created at the direction of TC USA's legal
counsel in anticipation of litigation. These documents all
relate to the investigation conducted by TC USA's legal
counsel after it reasonably believed that ...