Adair v. EQT Production Co.
285 F.R.D. 376
W.D. Va.2012Background
- Plaintiffs sue EQT Production for royalties as CBM lessors in Southwest Virginia; Motions seek production of emails to/from Kevin West.
- EQT withheld certain emails listed on its Second Amended Fourth Privilege Log (Nos. 182, 184-202, 204-207, 212-265) claiming attorney-client privilege and work-product protection.
- Kevin West served in multiple high-level roles at EQT and was designated as EQT’s company spokesperson for legal matters; he coordinated responses involving legal issues.
- Virginia law governs privilege questions here because claims are state-law claims under pendent and diversity jurisdiction; privilege must be strictly construed.
- Court finds EQT failed to prove most withheld emails were for the purpose of providing legal advice or created in anticipation of litigation; five entries warrant in camera review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorney-client privilege applies? | Adair argues most emails are not for legal advice. | EQT contends emails were between client and counsel for legal purposes. | Most emails not protected; only five may be privileged after in camera review. |
| Work-product protection applies? | Adair contends documents are not work-product. | EQT asserts documents prepared for litigation are work-product. | Work-product not shown; documents not created in anticipation of litigation. |
| In camera review warranted for some entries? | Adair requests in camera review to test privilege. | EQT contends review unnecessary for all entries. | Five entries ordered for in camera review. |
| West affidavits establish privilege? | Adair argues affidavits are conclusory and insufficient. | West’s statements should support privilege. | Affidavits deemed insufficient; need more specific evidence. |
| Overall discovery outcome? | Adair seeks production of emails not privileged. | EQT seeks protection for privileged/work-product documents. | Motions granted in part and taken under advisement in part. |
Key Cases Cited
- Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296 (Va. 1988) (strictly construed attorney-client privilege; confidential communications only)
- Va. Elec. & Power Co. v. Westmoreland-LG & E Partners, 259 Va. 319, 526 S.E.2d 750 (Va. 2000) (corporate privilege scope and in-house counsel considerations)
- United States v. United Shoe Mach. Corp., 89 F.Supp.357 (D.Mass.1950) (attorney-client necessity; not all communications privileged)
- ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53 (W.D.N.Y.1996) (limitations on corporate privilege; need for meaningful attorney involvement)
- Burton v. R.J. Reynolds Tobacco Co., Inc., 175 F.R.D. 321 (D.Kan.1997) (work-product protection requires litigation nexus)
- Coleman v. American Broadcasting Cos., Inc., 106 F.R.D. 201 (D.D.C.1985) (primacy of legal rather than business purpose for privilege)
- Henson v. Wyeth Labs., Inc., 118 F.R.D. 584 (W.D.Va.1987) (communication must be primarily for soliciting legal advice)