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In re NC Swine Farm Nuisance Litigation

United States District Court, E.D. North Carolina, Western Division

May 26, 2017

IN RE NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: Anderson
v.
Murphy-Brown, LLC, No. 7:14-CV-00183-BR Artis
v.
Murphy-Brown, LLC, No. 7:14-CV-00237-BR Gillis
v.
Murphy-Brown, LLC, No. 7:14-CV-00185-BR McGowan
v.
Murphy-Brown, LLC, No. 7:14-CV-00182-BR McKiver
v.
Murphy-Brown, LLC, No. 7:14-CV-00180-BR

          ORDER

          ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on Plaintiffs' motion to compel production of unredacted documents or for in camera review. [DE-256]. Defendant responded in opposition to the motion [DE-263], and the issues raised are ripe for determination. For the reasons set forth below, the motion is denied.

         I. STANDARD OF REVIEW

         The criteria for establishing a claim of privilege is well established:

A party asserting privilege has the burden of demonstrating its applicability. See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982) (per curiam). In claiming the attorney-client privilege, a party must satisfy procedural and substantive criteria. Procedurally, the party must "expressly make the claim" and "describe the nature of the documents ... in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed.R.Civ.P. 26(a)(5)(A). Substantively, a party must show that:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of the bar of a court, or is his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client
(b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or. (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Jones, 696 F.2d at 1072 (quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass. 1950)). And in claiming the work-product privilege, the party must demonstrate that the documents in question were created "in preparation for litigation." In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994) (citing Hickman v. Taylor, 329 U.S. 495, 509-14, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). When a party relies on a privilege log to assert these privileges, the log must "as to each document... set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed." Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993).

N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 501-02 (4th Cir. 2011). "[A]n opposing party can justify in camera inspection of the documents by advancing 'a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged.'" Id. at 502 (quoting In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992) and citing GD. v. Monarch Plastic Surgery, 239 F.R.D. 641, 650 (D. Kan. 2007) (requiring a "cogent basis" to justify in camera review)); see also Glaxo, Inc. v. Novopharm Ltd., 148 F.R.D. 535, 540 (E.D. N.C. 1993) ("If this court were to review each and every document withheld as privileged in litigation ... for no reason other than counsel's distrust of his adversary, this courthouse could hardly function.") (quoting Standard Chartered Bank, PLC v. Ayala Int'l Holdings, Inc., Ill F.R.D. 76, 86 (S.D.N.Y. 1986)).

         II. DISCUSSION

         Plaintiffs seek to compel production or alternatively in camera review of unredacted copies of various documents that Defendant has produced in redacted form based on the assertion of attorney-client or work-product privilege. Pis.' Mot. [DE-256]. Specifically, Plaintiffs take issue with documents listed on Defendant's December 18, 2015 privilege log and September 28, 2016 supplemental privilege log and challenge the privilege designation of certain representative documents (MB100102000120-22, MB100103000110-11, MB100103000484-86, M00106050513-25, M00201111067-70, S001022200106-29, S00107020093-95, S00113130076, S00113241325-26, S00113250666-67) (the "documents"). Id. Defendant responds that the documents represent communications seeking legal advice from counsel or were made for the purpose of litigation and are narrowly redacted to protect only the privileged information. Def.'s Resp. [DE-263] at 4-10. The parties engaged in discussions in an attempt to resolve the dispute but were unsuccessful. As explained in detail below, Defendant has carried its burden to demonstrate the redacted information is privileged, and Plaintiffs have failed to provide a sufficient factual basis to warrant in camera review.

         A. Document MB100102000120-22

         This document consists of three pages and includes a two-email chain: one email was sent on September 12, 2013 at 3:13 p.m. from Mike Williams (a professor at N.C. State University) to Don Butler (a Murphy-Brown executive) is titled "CWMTF final report, "[1] and includes an attached final report to be made publicly available the following week; and the other email was sent the same day at 8:54 p.m. by Don Butler and forwarded the first email to eight recipients, including David Evans (Murphy-Brown outside counsel) and Stewart Leeth (Smithfield in-house counsel), Waylett Decl. [DE-264] ΒΆ 8, with the content redacted as privileged. [DE-258] at 2-4. According to the December 18, 2015 privilege log, Defendant asserts that attorney-client privilege applies because the "[r]edacted portion of [the] email string among outside counsel, in-house counsel, and employees regarding animal waste treatment technology contains information provided to outside counsel and in-house counsel for the purpose of rendering a legal opinion." [DE-256-1] at 3. Plaintiffs suggest that ...


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