Texas Brine Co. v. Occidental Chem. Corp., 879 F.3d 1224

A sinkhole appeared in Louisiana in Aug. 2012 at a site where Texas Brine operated brine wells on land owned by Occidental Chemical (Oxy); Texas Brine retained Frontier (a PR/consulting firm) and its owner-attorney Brooks Altshuler for emergency response and later as a trial consultant.
Plaintiffs sued Texas Brine and Oxy in E.D. La.; Texas Brine filed a cross-claim against Oxy seeking indemnity for crisis-response costs (about $100M, $6.5M attributed to Frontier).
Oxy served a subpoena duces tecum on nonparty Frontier (compliance in W.D. Okla.) seeking eight categories of documents about Frontier’s work and communications.
Texas Brine moved to quash in W.D. Okla., asserting attorney-client privilege and work-product protection but produced no privilege log and made only blanket assertions. The district court ordered production of many categories subject to privilege screening and required a privilege log for withheld items; Frontier produced ~20,000 documents and a privilege log.
Texas Brine and Frontier appealed. The Tenth Circuit dismissed Frontier’s appeal for lack of standing to appeal and dismissed Texas Brine’s appeal as not ripe because Texas Brine failed to provide the factual record (privilege log or in camera review) necessary to adjudicate privilege/work-product claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ripeness of appeal	Texas Brine: district court construed Louisiana privilege law too narrowly; review appropriate now	Oxy: no privileged materials ordered produced; dispute contingent pending privilege log and further proceedings	Appeal not ripe — factual record insufficient; must first produce privilege log or have in camera review before appellate review
Scope of attorney-client privilege (communications with PR/consultants)	Texas Brine: communications with Frontier/Altshuler are privileged under La. evidentiary law as communications with a "representative of a lawyer"	Oxy: much Frontier work was non-legal (PR/business) and not protected; blanket privilege insufficient	Court declined to rule on scope absent document-specific factual record; district court required specificity and log
Applicability of work-product doctrine	Texas Brine: documents prepared in response to crisis/litigation anticipation are protected	Oxy: materials reflecting business or PR advice or attorney non-litigation activity are not protected	Court held work-product protection cannot be assumed; requires showing documents were prepared because of litigation and document-specific facts
Frontier's right to appeal (nonparty)	Frontier sought to appeal district order after not participating timely below	Texas Brine/Frontier argued Frontier has distinct interest	Frontier failed to timely become involved at district court; nonparty appeal dismissed for want of jurisdiction

United States v. Bennett, 823 F.3d 1316 (10th Cir.) (ripeness doctrine and prudential ripeness factors)
Texas v. United States, 523 U.S. 296 (U.S. Supreme Court) (ripeness principles)
New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir.) (preventing premature adjudication of abstract claims)
Kan. Judicial Review v. Stout, 519 F.3d 1107 (10th Cir.) (fitness inquiry for ripeness)
Holifield v. United States, 909 F.2d 201 (7th Cir.) (privilege inquiries require exposure to contested documents for principled determination)
In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir.) (failure to produce privilege log can waive privilege)
Marino v. Ortiz, 484 U.S. 301 (U.S. Supreme Court) (only parties or those who properly become parties may appeal)
Abeyta v. City of Albuquerque, 664 F.3d 792 (10th Cir.) (nonparty may appeal only if timely involved below and has unique interest)
In re Grand Jury Proceedings, 616 F.3d 1172 (10th Cir.) (attorney must do more than blanket claim of privilege)
In re Grand Jury Subpoena, 831 F.2d 225 (11th Cir.) (attorney seeking to quash must assert privilege document-by-document)
Dorf & Stanton Comms., Inc. v. Molson Breweries, 100 F.3d 919 (Fed. Cir.) (waiver of privilege for failure to comply with privilege log rules)