Box Elder Kids, LLC et al v. Anadarko E & P Onshore, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge S. Kato Crews
Civil Action No. 1:20-cv-02352-WJM-SKC
BOX ELDER KIDS, LLC;
C C OPEN A, LLC; and
GUEST FAMILY TRUST, by its Trustee CONSTANCE F. GUEST,
Plaintiffs,
v.
ANADARKO E & P ONSHORE, LLC;
ANADARKO LAND CORPORATION; and
KERR-MCGEE OIL AND GAS ONSHORE, LP
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO COMPEL, DKT. 155
This matter is before the Court on referral of Plaintiffs’ Motion to Compel
Production of Documents from Defendants’ Privilege Log, Dkt. 155. This dispute is
old in part due to the procedural posture of the case. It first arose with the parties’
September 16, 2021 Joint Discovery Dispute Report, Dkt. 80. After an informal
telephone conference with counsel on May 31, 2022, Dkt. 135, the Court took these
issues under advisement pending a ruling on Plaintiffs’ motion for class certification.
When District Judge Martinez denied the motion for class certification, this Court
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authorized Plaintiffs’ filing of a motion to compel concerning the unresolved issue of
Defendants’ failure to produce responsive documents noted on their privilege log.
The Motion to Compel is fully briefed. The Court has carefully reviewed the
Motion, pertinent docket entries, and applicable law. Further, Defendants provided
the disputed documents to the Court for its in camera review. As explained below,
the Court reviewed some, but not all documents. No additional hearing or discussion
with counsel is necessary.
A. Background of this Discovery Dispute
Plaintiffs are three surface landowners of acreage in Colorado that is subject
to respective Surface Owner Agreements (SOAs) with Defendants. The SOAs quiet
title to the minerals and authorize Defendants to enter and drill on Plaintiffs’ lands
to produce oil and gas. In exchange, Defendants agreed to pay Plaintiffs 2.5% of the
production value from the wells. Prior to 2010, Defendants paid 2.5% of the cash value
of a well’s production to the owner of the land on which the wellhead sat. Since 2010,
Defendants have allocated payments differently based on what percentage of a well’s
spacing unit was within a landowner’s parcel, regardless of where the wellhead is
located. This change in methodology resulted in some SOA landowners receiving
larger payments, while others’ payments were reduced. In 2020, Plaintiffs brought
this suit for breach of contract asserting Defendants breached the SOAs when they
changed the methodology for calculating the payments owed under the SOAs.
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When 	this 	discovery 	dispute 	first 	arose 	in 	September 	2021, 	Dkt. 	80,
Defendants were on their Fourth Amended Privilege Log. By the time Plaintiff filed
the Motion to Compel in February 2023, Defendants were on their Sixth Amended
Privilege Log. Both the Fourth and Sixth Logs were provided to the Court. According
to Defendants,
[t]he Fifth Log added extensive detail regarding Defendants’ claim of
privilege, most notably by adding 600 additional entries supporting
Defendants’ work product claim. Plaintiffs’ attack the sufficiency of the
Fourth Log, but the Fifth and Sixth Logs resolve many of Plaintiffs’
claims. The Sixth Log identifies documents that were produced in
redacted 	form 	and 	adds 	additional 	detail 	regarding 	why 	certain
documents are privileged.
Dkt. 158 at pp.4-5.
This dispute is over 66 documents which Defendants have either not produced
or produced with redactions,1 claiming attorney-client privilege, work product, or
both. In sum, Plaintiffs argue Defendants are not entitled to claim attorney-client
privilege over communications that do not request or convey legal advice between an
attorney and client. Plaintiffs claim the privilege does not apply to Entry Nos. 15-18,
20, 21, 24, 25, 27, 32-34, 37, 52, 53, 66, 100, 101, 112, 127, 145, 164, 167-71, 174, 175,
177, 178, 183, 194, 197-199, 202-207, 210, 218, 220, 221, 222-24, 232, and 236-38.
1 According to Defendants, they produced the following challenged documents
(denoted by the entry number on the Sixth Log) with redactions as of February 3,
2023: Entry Nos. 15, 16, 17, 18, 20, 24, 25, 28, 32, 33, 34, 48, 50, 51, 52, 53, 112, 132,
133, 145, 177, 183, 202, 203, 204, 205, 206, 207, 218, 221, 232, 236, 237, and 238.
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Plaintiffs also argue work-product protection does not apply to Entry Nos. 27,
28, 45, 48, 66, 100, 127, 132, 133, 145, 154, 164, 168, 169, 170, 183, 197, 198, 208, 220,
222, 223, 236, 237, and 238. They claim work-product protection is only afforded to
attorney notes or mental impressions, or documents prepared in anticipation of
litigation that is pending or reasonably foreseeable. Plaintiffs observe that most of
the challenged entries were not authored, transmitted, or received by a lawyer, and
all are dated at least a decade before the filing of Plaintiffs’ Complaint and before the
applicable wells were drilled. Plaintiffs further argue most of these entries describe
discoverable facts.
And finally, Plaintiffs argue Defendants have waived any claim of privilege or
protection over Entry Nos. 28, 40-42, 45, 47, 50, 51, 100, 112, 132, 133, 168, 169, 171,
174, 177, 197, and 198, due to the lack of sufficient explanation as to custodians,
authors, dates of creation, subject matter, and other critical details that would enable
Plaintiffs or the Court to reasonably assess the claimed privilege.
Defendants make several arguments in response, listed as follows: Plaintiffs’
Motion is premised on outdated and inaccurate information because it inexplicably
relies on the Fourth Log rather than the Sixth Log; Defendants have already
produced a majority of the challenged documents, albeit with redactions; any
Wyoming documents sought are not relevant given the denial of class certification;
the challenged documents include or involve attorneys and contain “sufficient indicia
of privilege;” communications that include facts are still privileged; the challenged
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documents were prepared in anticipation of litigation affording them work-product
protection; Plaintiffs cannot show they are entitled to the protected documents; and
Plaintiffs’ waiver argument is meritless. See generally Dkt. 158.
B. Analysis
As an initial matter, the Court finds the documents in Defendants’ Sixth Log
relevant to the asserted claims and defenses, and proportional to the needs of the
case.2 Fed. R. Civ. P. 26(b)(1); Chimney Rock Pub. Power Dist. v. Tri-State Generation
& Transmission Ass'n, Inc., No. 10-CV-02349-WJM-KMT, 2013 WL 1969264, at *6
(D. Colo. May 13, 2013) (“Privilege logs are only applicable when the responding party
to a discovery request acknowledges that certain evidence is responsive to the request
but the responder nonetheless withholds production because the evidence is protected
by a recognized privilege.”).
When a party withholds responsive information based on a claim of privilege
or some other protection, the party must “expressly make the claim,” and “describe
the nature of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5).
This is usually done with a privilege log. The purpose of a privilege log is to provide
the court and the opposing party with enough information to meaningfully evaluate
2 See infra n.8.
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claims of privilege or other protection. See Cabot v. Wal-Mart Stores, Inc., No. CIV
11-0260 JB/RHS, 2012 WL 592874, at *13 (D.N.M. Feb. 16, 2012); Coffeyville Res.
Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., No. 08-1204-WEB-KMH, 2009 WL
2913535, at *5 (D. Kan. Sept. 4, 2009).
When done correctly, “[p]roviding information pertinent to the applicability of
the privilege or protection should reduce the need for in camera examination of the
documents.” Fed. R. Civ. P. 26 (1993 advisory committee notes). “Generally, a
privilege log is adequate if it identifies with particularity the documents withheld,
including their date of creation, author, title or caption, addressee and each recipient,
and general nature or purpose for creation.” Zander v. Craig Hosp., 743 F. Supp. 2d
1225, 1232 (D. Colo. 2010).
1. 	Defendants’ Incomplete Privilege Log Entries and Waiver3
“[P]roduction of an inadequate privilege log may be deemed a waiver of the
privilege asserted.” Atteberry v. Longmont United Hosp., 221 F.R.D. 644, 649 (D. Colo.
2004), aff’d, 2005 WL 8169547 (D. Colo. Aug. 18, 2005); see also Chimney Rock Pub.
Power Dist., 2013 WL 1969264, at *6 (“Failure to assert a privilege properly on a
privilege log results in a waiver of the claim of privilege.”) (citing cases under
Colorado and federal law). Courts in this circuit have found waiver where, for
3 Entry Nos. 28, 40-42, 45, 47, 50, 51, 100, 112, 132, 133, 168, 169, 171, 174, 177, 197,
and 198. These include the entries the parties color coded in green on the Fourth and
Sixth Logs.
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example, a privilege log contained no information in the columns for author or
recipient. See High Point SARL v. Sprint Nextel Corp., No. CIV.A. 09-2269-CM, 2012
WL 	234024, at *15 (D. 	Kan. Jan. 25, 2012) 	(granting 	motion 	to 	compel), 	on
reconsideration in part, 2012 WL 1580634 (D. Kan. May 4, 2012). Or, where a
document was described on a privilege log as a “[c]onfidential draft referring to
information gathered at the request of counsel for the purpose of providing legal
advice regarding potential patent assignment,” but the only identified recipient of the
document was the “File.” Id. at *16. Or also, where a privilege log contained
insufficient descriptions to assist in evaluating the claims of privilege. Lee v. State
Farm Mut. Auto. Ins. Co., 249 F.R.D. 662, 671, 683-84 (D. Colo. 2008) (adopting, in
relevant part, the special master’s recommendations of disclosure based on waiver for
failure to submit a proper privilege log); see also Emps. Reinsurance Corp. v. Mid-
Continent Cas. Co., 358 F.3d 757, 775 (10th Cir. 2004) (noting the district court
compelled a party to disclose documents because it found the privilege log inadequate
to enable the court to determine whether the documents were privileged).
While some courts in this district have viewed it too harsh to declare the waiver
of privilege as a sanction for an inadequate privilege log, this Court finds the
circumstances of this case warrant a finding of waiver as to these categories of
documents. Cf. Carlson v. Colorado Ctr. for Reprod. Med., LLC, 341 F.R.D. 266, 289
(D. Colo. 2022) (concluding waiver was a disproportionate remedy for an inadequate
privilege log). Defendants are now on their sixth iteration of their privilege log, and
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at least the third iteration since September 2021 containing the 66 disputed
documents. And yet, 19 of the 66 disputed entries still identify no recipient, no author,
or both. See Dkt. 158-3 (Entry Nos. 28, 40-42, 45, 47, 50, 51, 100, 112, 132, 133, 168,
169, 171, 174, 177, 197, and 198). This is perplexing, for example, because in many
instances 	where 	Defendants 	claim 	attorney-client 	privilege, 	the 	accompanying
description is some variation that the document “analyzes legal title and ownership
related to [SOA] with legal advice from outside counsel . . . [,]” but there is no
indication of any recipient of the claimed legal advice. Id. (see, e.g., Entry Nos. 40-42,
45, 47, 50, 51, 100, and 112); High Point SARL, 2012 WL 234024, at *16 (granting
motion to compel where only recipient of the purported legal advice described on the
privilege log was the “file”).
And the entries over which Defendants claim work product are no better. Four
of those entries specify there is “no author” of the document. See Dkt. 158-3 (Entry
Nos. 28, 100, 132, and 168). And five of those entries merely identify the author as
“lkg339,” “zei205,” “sbn361,” or “Shawn.” Id. (Entry Nos. 45, 133, 169, 197, and 198).
While Defendants included a “Cast List” to assist with review of the Sixth Log, that
list does not identify the persons associated with these references, rendering them
meaningless. Notably, in their Response, Defendants discuss Entry No. 45 and
explain that “additional entries . . . establish [ ] that the document identified at Entry
45 was created by Marla Jones, Defendants’ in-house counsel, and shared with Jeff
Fiske, also in-house counsel. See Entry Nos. 544, 545, 546, and 547[.]” Dkt. 158 at
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p.4. But if that’s the case, Entry No. 45 should identify Ms. Jones as its author and
Mr. Fiske as its recipient in the Sixth Log—but Entry No. 45 does not identify either.4
Neither the Court nor Plaintiffs should have to hunt and peck through the Sixth Log
and review the documents to determine how other entries somehow fill in the blanks
for entries that omit critical information. As mentioned, Defendants have had three
tries since September 2021 to supply complete privilege log entries and have failed
each time.
Defendants do not explain why, after at least three attempts, these log entries
still identify no recipients, no authors, or both. They merely argue that the Sixth Log
adequately describes the basis for privilege, or that it produced some of these
documents, and therefore, “Plaintiff’s need only review the documents to see what
they contain.” Dkt. 158 at pp.3, 16. But the latter begs the question since Defendants
redacted the few documents they did produce. The question before the Court is
whether Defendants have properly claimed privilege for the material they redacted
or the documents they withheld. The purpose of the privilege log is to assist Plaintiffs
and this Court in evaluating the claimed privilege or protection without having to
resort to an in camera review. As one court has explained, “[i]n camera procedures
should be a rare procedure in discovery disputes. Such a procedure requires a great
4 The entry does identify Marla Jones and Keith Crouch in the column titled
“Attorney(s) Involved/Listed in Document,” but this is another meaningless reference
when no attorney or anyone else is identified as an author or recipient.
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deal of a court’s time and energy; the party asserting the privilege should provide the
justification for withholding a document instead of handing over documents and
waiting for the court to do their work for them.” Krenning v. Hunter Health Clinic,
Inc., 166 F.R.D. 33, 35 (D. Kan. 1996). And this Court declines to complete an
assignment for Defendants that they have had since September 2021 to do correctly.
Given the inadequacy of the Sixth Log for these entries, the Court exercises its
discretion and declines to review them in camera to discern Defendants’ claims of
privilege. See Motley v. Marathon Oil Co., 71 F.3d 1547, 1551-52 (10th Cir. 1995)
(“Whether to conduct an in camera review is left to the sound discretion of the district
court.”); Kovacs v. Hershey Co., No. 04-cv-01881-WYD-BNB, 2006 WL 2781591, at *11
(D. Colo. Sept. 26, 2006) (discussing the magistrate judge was not required to conduct
an in camera review merely because privilege was raised). For these specific entries,
the Court finds Plaintiffs have made an adequate showing that Defendants have
waived any claimed privilege or protection, and therefore, the documents are
ORDERED to be produced to Plaintiffs. See Peat, Marwick, Mitchell & Co. v. West,
748 F.2d 540, 542 (10th Cir. 1984) (“A party seeking to assert the privilege must make
a clear showing that it applies. Failure to do so is not excused because the document
is later shown to be one which would have been privileged if a timely showing had
been made. . .. [T]hat such a showing had not been made when the trial court was
called upon to make its ruling defeats the privilege.”); Atteberry, 221 F.R.D. at 649
(party failed to make an adequate showing to establish applicability of the attorney-
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client privilege or work-product doctrine where there was no privilege log or other
attempt to provide sufficient information to enable the plaintiffs or the court to
evaluate the claimed protection).
2. 	Entries Claiming Attorney-Client Privilege5
State law governs issues of privilege in cases based on diversity jurisdiction.
Fed. R. Evid. 501. In Colorado, the attorney-client privilege is “established by the act
of a client seeking professional advice from a lawyer and extends only to confidential
matters communicated by or to the client in the course of gaining counsel, advice, or
direction with respect to the client’s rights or obligations.” People v. Tucker, 232 P.3d
194, 198 (Colo. App. 2009); Colo. Rev. Stat. § 13-90-107(1)(b). The privilege applies
only to communications under circumstances giving rise to a reasonable expectation
that they will be treated as confidential. Tucker, 232 P.3d at 198 (citing Wesp v.
Everson, 33 P.3d 191, 197 (Colo. 2001)). It includes information given to the attorney
to enable them to render legal advice. Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo.
2000). But mere statements of fact are not protected by the attorney-client privilege.
People v. Trujillo, 144 P.3d 539, 545 (Colo. 2006) (citing Gordon, 9 P.3d at 1123). The
burden of establishing applicability of the attorney-client privilege is on the party
claiming the privilege, and the burden of establishing a waiver of the privilege is on
5 Entry Nos. 15-18, 20, 21, 24, 25, 27, 32-34, 37, 52, 53, 66, 100, 101, 112, 127, 145,
164, 167-171, 174, 175, 177, 178, 183, 194, 197-199, 202-207, 210, 218, 220, 221, 222-
224, 232, and 236-238. These include the entries which the parties color coded in
purple on the Fourth and Sixth Logs.
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the party attempting to overcome the privilege. Black v. Sw. Water Conservation
Dist., 74 P.3d 462, 467 (Colo. App. 2003); see also In re Foster, 188 F.3d 1259, 1264
(10th Cir. 1999).
In reviewing the Sixth Log, for those disputed entries over which Defendants
claim the attorney-client privilege, most of those entries are complete, but some are
not. For those that are complete, the Court has reviewed a sampling of the documents
in camera, to include the redacted and unredacted versions of some of them (such as
both versions of Entry Nos. 202-07, 221). See Carlson v. Colorado Ctr. for Reprod.
Med., LLC, 341 F.R.D. 266, 290 (D. Colo. 2022) (the decision to review documents in
camera is in the sound discretion of the trial court and is not a substitute for
submission of an adequate record supporting privilege claims).
Based on that review, the Court finds Defendants have met their burden to
show the attorney-client privilege applies to this category of documents. These
documents reflect Defendants’ internal communications which either share or discuss
legal advice which Defendants are attempting to implement, or which include or
culminate in a request for legal advice. See, e.g., Markley v. U.S. Bank Nat’l Ass’n,
No. 19-CV-01130-RM-NYW, 2020 WL 12602882, at *5 (D. Colo. Dec. 29, 2020)
(finding, under federal privilege law, one category of documents protected under the
attorney-client privilege because they reflected the transmission of attorney advice
for the purpose of apprising non-lawyer personnel of legal advice given by in-house
counsel, and another category properly protected because it reflected communications
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made to assist in-house counsel in rendering advice to the client); United States v.
ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002) (“Materials,
transmitted between nonlawyers, that reflect matters about which the client intends
to seek legal advice are comparable to notes a client would make to prepare for a
meeting with her lawyer[.] It would undermine the purpose of the attorney-client
privilege not to extend protection to such notes. Therefore, internal communications
that 	reflect 	matters 	about 	which 	the 	client 	intends 	to 	seek 	legal 	advice 	are
protected.”); Gordon, 9 P.3d at 1123 (the attorney-client privilege applies “to matters
communicated by or to the client in the course of gaining counsel”).
That said, there is one exception to the Court’s findings regarding this category
of documents. Entry No. 178 is incomplete; it identifies no recipients. And while the
log 	description 	states 	the 	document 	“includes 	contemporaneous 	stamp
‘CONFIDENTIAL 	AND 	PRIVILEGED 	ATTORNEY 	CLIENT
COMMUNICATION’[,]” in reality it contains no such contemporaneous stamp.
Moreover, the document appears to be a draft of a form letter to Colorado surface
owners who have one or more Surface Owner Agreements to inform them of the
payment-calculation change under their SOAs. According to the Sixth Log, the letter
was authored by Marla Jones, in-house counsel, with no recipients. The only privilege
Defendants claim is the attorney-client privilege, but there is no indication the
document 	was 	shared 	with 	any 	client 	because 	the 	privilege 	log 	identifies 	no
recipients. Thus, not only is the log entry incomplete resulting in waiver (for the
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reasons shared above), but review of the document itself simply does not bear out the
claimed privilege. See Hynix Semiconductor Inc. v. Rambus Inc., No. 00-cv-20905-
RMW, 2008 WL 350641, at *3 (N.D. Cal. Feb. 2, 2008). (“A vague declaration that
states only that the document ‘reflects’ an attorney’s advice 	is insufficient to
demonstrate that the document should be found privileged.”). Thus, Defendants have
not met their burden to show the privilege applies to Entry No. 178, and this
document is ORDERED to be produced. The remaining entries in this category,6
however, need not be produced because the Court finds the attorney-client privilege
applies.
3. 	Work-Product Protection7
“Unlike the attorney client privilege, the work[-]product [doctrine] is governed,
even in diversity cases, by a uniform federal standard embodied in Fed. R. Civ. P.
26(b)(3).” Frontier Refin. Inc. v. Gorman-Rupp Co., 136 F.3d 695, 702 n.10 (10th Cir.
1998) (cleaned up). To be subject to the work-product doctrine, the materials must
have been “prepared in anticipation of litigation. It does not protect materials
prepared in the ‘ordinary course of business.’” Weitzman v. Blazing Pedals, Inc., 151
6 Supra n.4. To the extent any of these entries also claimed work-product protection,
the Court does not analyze the work-product claim in light of its finding that the
attorney-client privilege applies to these entries.
7 Entry Nos. 48, 154, 183, and 208. Because this category of documents had some
overlap with the other two categories (i.e., incomplete entries and attorney-client
privilege), these are the only remaining entries in this category after the Court’s
rulings on the other two categories.
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F.R.D. 125, 126 (D. Colo. 1993) (citation omitted). Thus, to receive work-product
protection, the party claiming protection must demonstrate the information at issue
was prepared in anticipation of litigation or for trial. In re Grand Jury Proceedings,
616 F.3d 1172, 1184 (10th Cir. 2010).
For Entry No. 154, the Sixth Log identifies both the attorney-client privilege
and work product. The Court reviewed this document in camera and finds it conveys
the 	advice 	of 	counsel 	pertaining 	to 	a 	specific 	well(s) 	over 	which 	Defendants
reasonably anticipated litigation from a specific well owner. Thus, Defendants have
met their burden to establish that both claimed protections apply to this entry.
For Entry No. 48, Defendants claim only work-product protection, and they
produced this document to Plaintiffs with redactions. The Court has reviewed both
versions of this document and finds the redacted material is indistinguishable from
the unredacted material. In other words, while the Sixth Log claims the redacted
material “includes a request for legal advice from company attorney regarding
Surface Owner Agreement terms and legal advice from company attorney regarding
Surface Owner Agreement terms[,]” none of these blanket claims are borne out by the
Court’s review. Rather, it appears Defendants have selectively redacted sentences
from this document without a credible basis in work product. The redacted material
neither reflects the mental impressions of counsel, nor is it evident that the redacted
portions were somehow prepared in anticipation of litigation to the exclusion of the
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unredacted portions. Defendants have not carried their burden to show Entry No. 48
qualifies for work-product protection.
For Entry No. 208, Defendants claim both the attorney-client privilege and
work-product protection. Entry No. 208 is identical to Entry No. 178, only this draft
form letter is directed to Wyoming surface owners.8 The Court finds the attorney-
client privilege does not apply to this document for the same reasons the Court found
it does not apply to Entry No. 178. The Court also finds no work-product protection
applies to this document. This draft form letter is directed to third parties, i.e.,
Wyoming surface owners, to notify them of changes to their SOA payments. It is
apparent to the Court that this draft letter was prepared in Defendants’ ordinary
course of business and not in anticipation of litigation; whether or not litigation would
ensue, Defendants had to inform these surface owners of the change as a business
matter and in any event. See Fed R Civ. P. 26(b)(3), 1970 advisory committee notes
(“Materials assembled in the ordinary course of business, or pursuant to public
requirements unrelated to litigation, or for other nonlitigation purposes are not under
8 The Court finds that the documents in dispute which involve Wyoming surface
owners are relevant and proportional to the claims in this case because the SOAs,
whether involving Wyoming or Colorado surface owners, contain materially identical
payment provisions, and they were all subject to the same calculation change at issue
in this case. This is not to say that any manner of documents or circumstances
involving Wyoming surface owners is relevant and proportional to the needs of this
case. It is only to say that the documents which are the subject of this discovery
dispute are relevant and proportional in this Court’s view. Whether these documents
are admissible at trial is a different question for the presiding district judge.
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the qualified immunity provided by this subdivision.”); W. Trails, Inc. v. Camp Coast
to Coast, Inc., 139 F.R.D. 4, 9 (D.D.C. 1991) (“The privilege does not shield from
discovery documents that were ‘prepared in the regular course of compiler’s business,
rather than specifically for litigation, even if it is apparent that a party may soon
resort to litigation.’”) (citation omitted).
And finally, for Entry No. 183, Defendants claim both attorney-client privilege
and work product. Defendants have not met their burden to show this document
benefits from either protection. The bottom portion of this email string is a message
from Lynn Schardein to Hank Wood9 with other Anadarko employees copied. It is an
internal communication which summarizes a report from Joelle Barnett and Tessa
Dean, both non-lawyers, concerning the identification of possible SOA concerns in the
Wamsutter area. While the Sixth Log claims this document “summarizes legal
advice,” the document instead appears to report and summarize the results of Ms.
Barnett’s and Ms. Dean’s factual investigation into wells in the Wamsutter area and
the resulting concerns they identified. The email does not reference any attorneys or
legal advice. Nor does it express an intent to seek legal advice. The Court’s review of
the document further suggests the communication was prepared and sent in the
ordinary course of business. See, e.g., Bernardi v. Cmty. Hosp. Ass'n, 443 P.2d 708,
9 The “Cast List” Defendants provided does not include Mr. Wood. The Court
understands Mr. Wood to be another Anadarko employee since the Sixth Log does not
indicate any attorneys were involved or identified in this communication.
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715 (Colo. 1968) (finding the attorney-client privilege did not apply and stating, “[i]t
well may be that the practice of making an incident report resulted from the advice
of counsel, but it seems rather plain that these incident reports were not prepared for
the attorney. Rather, they were prepared for certain administrative officials . . . and
they were available to the . . . attorney if he wished to see them.”). For these reasons,
Defendants have not met their burden to show Entry No. 183 is attorney-client
privileged or work product prepared in anticipation of litigation. This includes the
subsequent forwarding of the email from Ms. Dean to Ms. Schardein at the top of the
page, and the attachments to the email.
* 	* 	*
For the reasons shared above, Plaintiffs’ Motion to Compel is GRANTED IN
PART and DENIED IN PART. It is ORDERED that Defendants produce the
following documents to Plaintiffs, unredacted, within seven days of the date of this
Order: Entry Nos. 28, 40-42, 45, 47, 48, 50, 51, 100, 112, 132, 133, 168, 169, 171,
174, 177, 178, 183, 197, 198, and 208.
DATED: August 8, 2023
BY THE COURT:
______________________________
S. Kato Crews
United States Magistrate Judge
Case No. 1:20-cv-02352-WJM-TPO Document 180 filed 08/08/23 USDC Colorado
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