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People v. Kinder Morgan Energy Partners

October 12, 2010

PEOPLE OF THE STATE OF CALIFORNIA AND THE CITY OF SAN DIEGO, PLAINTIFFS,
v.
KINDER MORGAN ENERGY PARTNERS, L. P., ET AL., DEFENDANT.



The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DISCLOSURE OF INFORMATION RELATED TO SHELL OIL COMPANY'S ATTORNEY MARC R. GREENBERG

(Doc. No. 101)

Defendants Kinder Morgan Energy Partners, L.P., et al., (hereafter "Defendants") have filed a Motion to Compel Production of Documents And Disclosure Of Information Related to Shell Oil Company's Attorney Marc R. Greenberg (hereafter "Motion"). Plaintiffs People of the State of California and the City of San Diego (hereafter "City" or "Plaintiffs") have filed an Opposition to the Motion. Defendants have filed a Reply to Plaintiff's Opposition. The Court, having reviewed the Motion, Opposition, the Reply, having heard oral argument on the motion, and having reviewed in camera the documents that are the subject of Defendants' Motion, and GOOD CAUSE APPEARING, HEREBY GRANTS in part and DENIES in part Defendants' Motion.

I. FACTUAL BACKGROUND

In 2003, Shell Oil Company (hereafter "Shell") entered into settlement negotiations to resolve potential litigation with Plaintiffs in which Plaintiffs would claim that Shell had liability for the clean-up of contamination that Shell acknowledged emanated from its operations. Shell was represented by Marc R. Greenberg (hereafter "Greenberg").

During the settlement negotiations, Greenberg was employed by the law firms Baker & Hostetler, and later, Keesal, Young & Logan. The City was represented by Grace Lowenberg (hereafter "Lowenberg") and Frank Devaney (now Judge Devaney)(hereafter "Devaney").

During the negotiations between the City and Shell regarding Plaintiffs' potential claims against Shell, Greenberg offered to represent the City in litigation against Defendants.

In order to determine whether the City would retain Greenberg to pursue litigation against Defendants, the City sought from Greenberg oral and written legal advice regarding potential claims against Defendants for Defendants' alleged contamination of 166 acres under and surrounding Qualcomm Stadium (hereafter "the Property"). On October 24, 2004, the City and Shell entered into a Settlement Agreement regarding Shell's liability for contamination at the Property.

Defendants seek production of nine documents that the City has withheld from production based on the attorney-client privilege and work product doctrine. These documents are communications between Greenberg and Lowenberg and/or Devaney and/or other employees of the City who were working with Lowenberg and/or Devaney. The Court has reviewed the documents in camera.

II. ANALYSIS

A. California Law Applies to Plaintiffs' Assertion of the Attorney-Client Privilege

Plaintiffs' First Amended Complaint contains causes of action for Public Nuisance, pursuant to California Code of Civil Procedure §731, and California Civil Code §§ 3479 and 3480; Private Nuisance pursuant to California Civil Code §§ 3479, 3480 and 3481; Trespass, Negligence, Violation of California Health & Safety Code §25249.5 (Drinking Water and Toxic Enforcement Act of 1986); Violation of California Business & Professions Code § 17200, et seq.; and Declaratory Relief.

Federal Rule of Evidence 501 states in pertinent part: ...(I)n civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Here, Plaintiffs' causes of action arise under California law. Therefore, pursuant to Fed. R. Evid. 501, the City's assertion of the attorney-client privilege is ...


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