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Heckman v. Transcanada USA Services, Inc.

United States District Court, S.D. Texas, Galveston Division

January 13, 2020




         This 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 product privileges.


         Plaintiff 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.

         In this 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.

         To 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.[1] 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.


         A. Legal Standard for Work Product Privilege

         Established 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).

         The 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 future litigation.

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).

         B. Applicability of Work Product Privilege

         TC 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 ...

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