Case Information
*1 United States District Court Southern District of Texas ENTERED IN THE U NITED STATES DISTRICT CO URT March 15, 2018 FOR THE SOUTHERN DISTRICT OF TEX A S David J. Bradley, Clerk HO USTON D IVISIO N
PETROBRA S A M ERICA S INC.
Plaintiff Civil A ction No. 4:12-cv-0888
VS.
VICINAY CAD EN A S, S.A .,
Defendants
Before the Court is defendant Vicinay Cadenas,S.A.'S (ûkvicinay'') motion (Dkt. 334) to compel the production of unredacted billing records from non-party, RiserTec, lnc. Riser-rec, Inc. produced these billing records in response to a subpoena issued pursuant to Federal Rule of Civil Procedure 45 . The records ocum en 1 d t various billing entries for Craig M asson s tim e and associated expenses providing testim ony as Petrobras Am erica Inc . s , 2 > (kkpetrobras'') Rule 30(b)(6) designee. At the direction of Petrobras' attorneys, RiserTec fedacted the descriptions of the w ork that w as done. A fter the records w ere produced, V icinay dem anded the production of unredacted copies.Petrobras asserted, for the first tim e, the redacted inform ation was protected by the attorney-client and w ork-product privileges. (Dkt. 334-6).
' The Court has considered Petrobras' argum ent that defendant's m otion was untim ely . Because it was filed before the deadline to file motions expired, the Court will consider it.
2 M r . M asson was employed by Petrobras at the tim e many of the faets giving rise to this litigation occurred. He subsequently left Petrobras to work for Risererec.
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Defendant insists any objections and assertionsof privilege were waived because RiserTec failed to assert them prior to or at the tim e it responded to the subpoena. It also argues that Petrobras waived its privilege claim because it failed to timely object or assert privilege. D efendant further contends that Petrobras has no privilege to assert because there is no attorney-client relationship betw een Riser-f'ec and Petrobras' lawyers, and no w ork product protection because neither Riser-f'ec nor Petrobras' lawyers anticipate litigation with defendant.
iûrf'he failure to serve written objections to a subpoena within the time spccified by Rule (45(d)(2)(B) 1 typically constitutes a waiver of such objections,'' as does failing to file a tim ely m otion to quash. Isenberg v. Chase Bank USA, N .A ., 661 F.Supp.2d 627, 629 (N.D.TeX. 2009). But courts have also held that the failure to act timely will not bar consideration of objections in unusual circumstances and for good cause shown. American Fed. Of M usicians of the U.S. and Canada v.Skodam Films, LLC,313 F.R.D. 39, 43 (N.D.TeX. 2015) (citations omitted). Courts have found find such unusual circumstances where (1) the subpoena is overbroad on its face and exceeds the bounds of fair discovery, (2) the parties discussed the issue of compliance with the subpoena prior to the challenge, or (3) the subpoenaed witness is a non-party acting in good faith. 1d. (citations omitted).
The entries describe M r. M asson's w ork and com m unications with Petxobras' attorneys w hile preparing to testify in this law suit as a representative of Petrobras. These entries clearly fall w ithin the attorney-client and w ork product privileges. Petrobras did not tim ely assert privilege, though, and it failed to file a m otion to quash the subpoena. How ever, since the request clearly and unambiguously sought the production of privileged
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inform ation, it exceeded the bounds of fair discovery. W hen it learned of the subpoena, Petrobras affirm atively took steps to protect the inform ation by instructing Riser-rec to withhold the privileged inform ation and the privileged inform ation w as never disclosed to an adverse party. Rule 45 would allow Petrobras to assert these privileges and dem and return of the m aterials even if the inform ation had been produced in response to the subpoena. FED. R. CIV. P. 45(e)(2)(B). ln light of the circumstances, Petrobras' untimely assertion of privilege did not w aive those privileges.
Defendant's motion (Dkt. 334) is denied.
Signed at Houston, Texas on March 1 V , 2018.
- V.
Stephen W m . Sm ith U nited State M agistrate Judge