Exxon Mobil Corporation v. Northwestern Corporation, 1:16-cv-00005

Exxon Mobil (XOM) operates a Billings, Montana refinery and purchases electric service from Northwestern Energy (NWE).
XOM suffered refinery outages in January 2014 and January 2016 and sued NWE alleging negligent design, installation, and maintenance caused the outages and resulting damages.
In discovery disputes, XOM withheld documents as attorney-client privileged or as attorney work product from a post-event “hindsight investigation.”
The Court ordered in-camera review of items from XOM’s privilege log and a redacted slide from a presentation by Joaquim Demagalhaes.
The Court evaluated whether documents were prepared in anticipation of litigation (work product) versus ordinary-course business materials, and whether attorney-client communications should be redacted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the hindsight-investigation documents are protected work product	XOM contends the investigation was undertaken in anticipation of litigation and thus protected	NWE contends the investigation was conducted for business reasons and is discoverable	Court: Not work product — investigation began for ordinary business purposes before counsel decided to invoke privilege; ordered production
Whether communications to/from corporate counsel and a slide labeled "Legal Recourse" are privileged/work product	XOM contends communications and the slide reflect legal advice or attorney mental impressions and are privileged/protected	NWE seeks production of the materials; argues redactions only where privilege clearly applies	Court: Communications with corporate counsel must be redacted (attorney-client privilege). The single slide marked "Legal Recourse" reveals privileged communications and attorney mental impressions and is protected (no production)

Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975) (party resisting discovery bears heavy burden)
DIRECTV, Inc. v. Trone, 209 F.R.D. 455 (C.D. Cal. 2002) (resisting party must clarify and support discovery objections)
Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002) (trial court has broad discretion over discovery)
Heath v. F/V Zolotoi, 221 F.R.D. 545 (W.D. Wash. 2004) (documents prepared in ordinary course are not work product)
United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) (work product protection requires anticipation of litigation)
Lumber v. PPG Indus., Inc., 168 F.R.D. 641 (D. Minn. 1996) (delegating business activity to counsel does not automatically create privilege)
In re Grand Jury Subpoena, 357 F.3d 900 (9th Cir. 2004) (circumstances of document preparation are relevant to work-product analysis)