2:21-cv-00182
D. Wyo.Dec 7, 2022Background
- On October 4, 2018 an explosion at Devon Energy’s Sherwood #1 site injured plaintiffs; Devon initiated an incident investigation under its SIF (serious injury/fatality) protocol.
- Devon’s in-house counsel, Dan Isenhower, requested a “privileged and confidential” investigation; Devon’s Incident Command Team (ICT) conducted fact-gathering and interviews under long‑standing business protocols.
- Isenhower edited and revised a PowerPoint summarizing the ICT’s findings; Devon says the PowerPoint is the only formal report and withheld it in discovery claiming attorney-client privilege and work product protection.
- Devon did not produce a privilege log and submitted a declaration (McDaniel) that omitted specifics required by local rules about authorship, recipients, and who presented the PowerPoint.
- Plaintiffs moved to compel production, arguing the PowerPoint was created for business (not legal) purposes, privilege was not established, and any privilege was waived by disclosure to OSHA and witness testimony.
- The magistrate judge reviewed the PowerPoint in camera and concluded it contains factual findings and remedial recommendations made pursuant to ordinary business practice, not legal advice, and ordered production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PowerPoint is protected by the attorney-client privilege | PowerPoint prepared primarily for business purposes; in-house counsel’s involvement was managerial/business and any legal content incidental | Isenhower initiated a privileged investigation, participated throughout, revised the PowerPoint, and provided legal input so communications are privileged | Not privileged — court found content primarily factual/business, lacking legal advice; Devon failed to meet burden and omitted required privilege‑log details |
| Whether the PowerPoint is protected as attorney work product (prepared in anticipation of litigation) | The presentation was prepared in ordinary course of business and would have existed regardless of litigation | The PowerPoint contains Isenhower’s work product prepared in anticipation of OSHA/litigation | Not work product — prepared pursuant to routine SIF business protocol and would have been created irrespective of litigation |
| Adequacy of privilege assertion / waiver issues | Plaintiffs contend Devon waived privilege by sharing remedial measures with OSHA and via witness testimony | Devon submitted a declaration and in‑camera redactions asserting privilege/work product | Court found Devon’s privilege assertion deficient under local rules; because document not privileged, disclosure/wavier analysis unnecessary and production ordered |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (corporate attorney-client privilege protects communications seeking legal advice but not underlying factual information)
- Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695 (10th Cir.) (diversity cases: state law governs privilege; federal law governs work product)
- In re Grand Jury Proceeding, 616 F.3d 1172 (10th Cir.) (privilege strictly construed; discusses work product and scope of protections)
- Lindley v. Life Inv'rs Ins. Co. of Am., 267 F.R.D. 382 (N.D. Okla. 2010) (multi-factor, fact-driven approach to distinguish legal vs. business advice from in-house counsel)
- In re GM LLC Ignition Switch Litig., 80 F. Supp. 3d 521 (S.D.N.Y.) (work product does not protect materials prepared in the ordinary course of business or that would be created regardless of litigation)
- Schaeffler v. United States, 806 F.3d 34 (2d Cir.) (work product protection requires that documents be prepared because of the prospect of litigation)
- Marsee v. U.S. Tobacco Co., 866 F.2d 319 (10th Cir.) (trial court has broad discretion in discovery rulings)