MAINTENANCE ENTERPRISES, LLC, Plaintiff, v. ORASCOM E&C USA, INC. and Iowa Fertilizer Company, LLC, Defendants. Orascom E&C USA, Inc., Counterclaimant, v. Maintenance Enterprises, LLC, Counterclaim Defendant Case No. 3:16-CV-00014-SMR-CFB United States District Court, S.D. Iowa, Davenport Division Signed February 02, 2018 Counsel Mark E. Weinhardt, Elisabeth A. Tursi, Todd M. Lantz, The Weinhardt Law Firm, Des Moines, IA, Terry M Giebelstein, Alexander Clement Barnett, Benjamin James Patterson, Lane & Waterman LLP, Davenport, IA, Brandon K. Black, Pro Hac Vice, Charles Parker Kilgore, Pro Hac Vice, Jones Walker LLP, Baton Rouge, LA, Christopher D. Cazenave, Pro Hac Vice, Jones Walker Waechter Poitevent Carrere & Den'Egre LLP, New Orleans, LA, Joseph P. Henner, Pro Hac Vice, Jones Walker LLP, Atlanta, GA, Michael C. Drew, Pro Hac Vice, Richard John Tyler, Pro Hac Vice, Jones Walker LLP, New Orleans, LA, for Plaintiff. Rebecca Woods, Pro Hac Vice, Seyfarth Shaw, Atlanta, GA, Roger W. Stone, Chad D Brakhahn, Jacob W. Nelson, Jeffrey A. Stone, P. Gail Brashers-Krug, Simmons Perrine Moyer Bergman PLC, Cedar Rapids, IA, Sara Beiro Farabow, Pro Hac Vice, Anthony J. LaPlaca, Pro Hac Vice, Seyfarth Shaw LLP , Washington, DC, for Defendant. Bremer, Celeste F., United States Magistrate Judge ORDER ON PRIVILEGED DOCUMENTS (Second In Camera Inspection) *1 The scope of attorney-client privilege and work-product doctrine as OEC claims, relating to documents withheld in response to MEI's discovery requests, remains in dispute. MEI has filed Motions to Compel production of documents that OEC listed on its Privilege and Clawback Logs (ECF 198, 199). The Court resolved most of these issues in its Order on January 24, 2018 (ECF 234). In that Order, OEC was required to reassess its claim of privilege as to certain documents, and counsel were required to meet-and-confer as to one set of documents. If the parties could not reach agreement as to how the attorney-client (A/C) privilege and work-product (W/P) doctrine were claimed and applied to this subset of the “Privilege by Attachment” (PxA) documents on OEC's logs (ECF 228-3 and 228-4), then those documents were to be submitted for in camera inspection. The parties could not agree as to the appropriate scope of privilege for these documents. The documents were provided to the Court along with a revised Privilege Log (ECF 238). The Court has considered the parties' arguments, and the authorities cited when examining the documents. Determinations about the scope and application of privileges were guided by Fed. R. Civ. P. 26(b)(1) and relevant cases. Again, there is no new law to consider on this topic, just a need to determine the appropriate scope for claiming privilege for documents that were attached to communications to and from counsel. As noted in the previous Order, merely attaching a document to a communication routed through counsel does not automatically grant it privilege, and documents that serve more of an ordinary business purpose are not protected by privilege. OEC asserts that for some of the documents, the advice of counsel is so intertwined within an email thread or identified in the attached material that any redaction, limited production, or further description is impossible without waiving the privilege. Even if a document is privileged, the underlying factual information may otherwise be discoverable. The Court must examine the nature of the document, and the facts of the particular case, to assess whether a document can fairly be said to have been prepared or obtained in anticipation of litigation, or is a communication for the purpose of receiving legal advice. OEC's offer to produce this subset of PxA documents, with the proviso that no further discovery be allowed based upon any information in these documents, was rejected by MEI. OEC's offer was aimed toward bringing discovery to a close. However, it was because the documents might lead to further narrowly tailored discovery, under the very limited exceptions to the work-product doctrine, that the Court required their further review. The Court understands OEC's position that the designation PxA is a sufficient manner to claim, and protect, both A/C privilege and W/P doctrine. The Court understands MEI's position that without further review of these documents by it, or the Court, it was not in a position to agree with OEC's assessment of privilege or relevance in discovery, or to agree to any limitation on additional discovery. *2 Until the in camera inspection was completed, the Court was not in a position to understand how the blanket designation of privilege for various documents was used. The Court appreciates counsels' attempts to resolve or narrow this dispute. Considering the vast amount of discovery that has been produced by both parties, to narrow the dispute to this last batch of documents (identified in the log filed as ECF 238-1) is commendable. The Court gained an understanding of the nature of this construction project, the parties' relationships, and timing of certain disputes, during the previous in camera review of documents, which assisted in the review of this set of materials. Based upon the review of the documents (ECF 238), the Court finds and orders: 1. Weitz/OCI re-review. After the first in camera inspections, the Court identified 10 documents that needed further explanation of the claimed privilege (ECF 234). OEC re-reviewed these documents, and produced redacted versions or withdrew its claim of privilege as to six. It further explained the privilege claimed on four: Doc. Nos. 2748, 2759, 3170, and 3498. The Court re-reviewed these documents, and finds that the privileges asserted are appropriate. MEI's Motion to Produce these documents is denied. 2. Metadata Matchable. In the revised privilege log (ECF 238-1), there are 18 documents for which OEC claims a privilege, and for which it asserts that it cannot provide further information in a privilege log, out of concerns that it would waive or compromise the privilege asserted. MEI suggested that these documents be produced without the metadata that would allow them to be linked to parent documents. OEC resists this approach. The Court completed an in camera review of these documents, along with the others listed below. These 18 documents are protected by the A/C privilege. 3. Privileged by Attachment, Not Otherwise Appearing. In the first set of documents produced for in camera review (ECF 228), there were documents in the Privilege and Clawback Logs that were identified as Privileged by Attachment. These were further broken down into four subsets: A) Produced Duplicates; B) Not Responsive; C) Independently Privileged; and D) Not Otherwise Appearing. In the Order following the first in camera review, the Court found that the documents in the first three categories were appropriately designated as privileged and that the privilege had not been waived (ECF 234). As to the PxA category “Not Otherwise Appearing,” the Court determined that further explanation or review of the documents was required. Based upon a review of these documents and the revised log (ECF 238-1)[1], the Court finds that OEC has sufficiently demonstrated that these documents are protected by work-product doctrine, or were part of a communication with counsel for the purpose of seeking legal advice. The Court finds that to the extent that a portion of an email thread or other correspondence was not otherwise privileged, the material connected to and within the communication from counsel renders the entire communication privileged. As most of this material consisted of copies of public records, such as the liens related to this project, or multiple copies of the Requests for Production of Documents from OEC to MEI in this case, the Court better understands OEC's suggestion that it could have produced this material in an effort to close discovery. Most of the material reviewed contains information that, while privileged in this context, is available to MEI through discovery or otherwise (such as a search of public records). *3 MEI's Motions to Compel (ECF 198, 199) production of privileged documents are denied. IT IS SO ORDERED. Footnotes [1] The Revised Log lists Document No. 1025, described as a memorandum reflecting the advice of counsel which was not produced. It appears to be related to Document No. 1024 which was produced, and is protected. Based upon the information contained in Document No. 1024 and the description contained in the Log, the Court finds that Document 1025 is also protected.