United States District Court, D. Montana, Billings Division
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
Exxon Mobil Corporation ("XOM") is a New Jersey
Corporation that operates a refinery in Billings, Montana.
XOM receives power for its refinery through Defendant
Northwestern Corporation dba Northwestern Energy
("NWE"). In January of 2014 and January of 2016,
XOM's Billings refinery suffered a power outages. As a
result, XOM claims it suffered damages based on the loss of
power and alleges that the outages were directly caused by
NWE's negligent design, installation, and maintenance of
its equipment and systems.
August 30, 2017, the Court held a hearing in relation to the
parties' cross motions to compel discovery. (Docs. 121,
134). After hearing argument, the Court granted XOM's
motion to compel and took NWE's motion to compel under
Court ordered XOM to produce to the Court the documents
indicated on its privilege log (Doc. 142-1), the redacted
page XOM00274064 (Doc. 135-2), and a redacted page from
Joaquim Demagalhaes's presentation (XOM00284176), for an
in camera review. (Doc. 143). The documents XOM
claimed were privileged were generally related to a
"hindsight investigation, " which it claimed was
instigated in anticipation of litigation and is therefore not
discoverable under Fed.R.Civ.P. 26(b)(3). XOM also withheld
certain documents under the attorney-client privilege based
on communications between several employees and corporate
counsel. XOM fully complied with the Court's order on
September 6, 2017. (Doc. 144).
general, a litigant is entitled to "obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense [.]" Fed.R.Civ.P. 26(b)(1).
Also, "[Relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence."
party's failure to disclose requested information the
requesting party may move to compel the opposing party to
produce the requested discovery materials. Fed.R.Civ.P.
37(a)(1). Specifically, a party's failure to answer an
interrogatory, or to respond to a request for production are
grounds for obtaining an order compelling disclosure.
on the liberal discovery policies of the Federal Rules of
Civil Procedure, a party opposing discovery carries a
"heavy burden" of showing why discovery should not
be allowed. Blankenship v. Hearst Corp., 519 F.2d
418, 429 (9th Cir. 1975). "The party who resists
discovery has the burden to show that discovery should not be
allowed, and has the burden of clarifying, explaining, and
supporting its objections." DIRECT TV, Inc. v.
Trone, 209 F.R.D. 455, 458 (C.D.Cal. 2002) (citing
Blankenship, 519 F.2d at 429).
ruling on a motion to compel, "[b]road discretion is
vested in the trial court to permit or deny
discovery[.]" Hallett v. Morgan, 296 F.3d 732,
751 (9th Cir. 2002).
hallmark of the work product doctrine is that the document
sought to be protected was "prepared in anticipation of
litigation." Fed.R.Civ.P. 26(b)(3). "It is well
established that documents prepared in the ordinary course of
business are not protected by the work-product doctrine
because they would have been created regardless of the
litigation." Parrick v. FedEx Grounds Package
Sys., 2010 WL 2854314, *10 (D. Mont. July 19, 2010)
(citing Heath v. F/VZOLOTOI, 221 F.R.D. 545, 549-50
(W.D. Wash. 2004) (quoting Advisory Committee Notes to
Fed.R.Civ.P. 26(b)(3)). Furthermore, "even if documents
prepared in the ordinary course of business might also be
helpful in preparation for litigation, they do not qualify
for protection" under the work product doctrine.
Heath at 550 (citing United States v.
Adlman, 134 F.3d 1194, 1202 (2nd Cir. 1998). Also,
attempting to delegate a business activity to legal counsel
does not shield an investigation from discovery. Lumber
v. PPG Industries, Inc., 168 F.R.D. 641, 646 (D. Minn.
1996). In determining whether a document was prepared for an
ordinary business purpose or in anticipation of litigation,
"[t]he circumstances surrounding the document's
preparation must also be considered." In re Grand
Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004).
to the privilege log, XOM had submitted a draft of the
outline for the hindsight investigation by at least February
22, 2014. (Doc. 144-2 at 1). In this document, XOM listed its
"objectives" for the hindsight investigation which
did not include a section on legal recourse or reference
potential litigation. This evidences to the Court that the
hindsight investigation was conducted for business reasons
unrelated to future litigation. Moreover, XOM states in a
letter to the Court: "[i]n late February, it was unclear
whether the hindsight investigation would be conducted in an
open, non-privileged format, or in a closed, privileged and
work product context." (Doc. 144-1 at 2). As of February
23, 2017, XOM's corporate counsel had still ...