United States District Court, E.D. North Carolina, Western Division
IN RE NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: Anderson
Murphy-Brown, LLC, No. 7:14-CV-00183-BR Artis
Murphy-Brown, LLC, No. 7:14-CV-00237-BR Gillis
Murphy-Brown, LLC, No. 7:14-CV-00185-BR McGowan
Murphy-Brown, LLC, No. 7:14-CV-00182-BR McKiver
Murphy-Brown, LLC, No. 7:14-CV-00180-BR
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
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.
STANDARD OF REVIEW
criteria for establishing a claim of privilege is well
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
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.
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)).
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
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, " 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] ¶
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 ...