Pre-trial order on privileged info debated in BP MDL

By Alejandro de los Rios | Mar 10, 2011


Plaintiff and defense counsel have submitted letters arguing the intent and applicability of a pre-trial order (PTO) governing privileged information in the BP oil spill multi-district litigation.

Attorneys in the Plaintiffs Steering Committee (PSC) and from BP, Halliburton, Anadarko and MOEX Offshore wrote letters to the BP MDL Magistrate Judge Sally Shushan on March 10.

The PSC's letter states that they and BP "have reached an impasse regarding the meaning and/or scope" of PTO #14 regarding privileged communication between parties and counsel.

"PTO #14 was intended to eliminate the time and expense of identifying and listing voluminous and clearly privileged post-litigation communications," the PSC letter states.

However, the PSC looks to expand the scope of PTO #14 to apply to other materials that may not qualify as privileged information.

"Some of the post-incident communications within BP (or other Defendants) do not attain privileged status simply because they might be circulated to in-house counsel ... [and] they should (at the very least) be disclosed on the privilege logs," the PSC's letter states.

BP attorney Andrew Langan challenges the PSC's assertion. He wrote that the order "plainly applies to communications with any 'counsel.' It makes no distinction between counsel who happen to be employees of BP and counsel who work for law firms retained by BP."

Langan calls the PSC's fears that BP is improperly labeling logs as privileged "hypothetical" and that BP "has produced hundreds, if not thousands, of post-incident documents that reflect communications with counsel that BP is not asserting are privileged."

Anadarko and MOEX Offshore attorney Ky Kirby also rejects the PSC's claims. He says they "mischaracterize the purpose" of PTO #14.

"The voluminous and clearly privileged communications with in-house counsel following the April 20 incident, both before and after outside counsel were retained are ... excluded from the requirement to be included in a privilege log."

Halliburton attorney Donald Godwin also countered the PSC's claims, stating their request "will result in considerable burden upon all parties invovlved" and that the PTO's "logic is sound."

U.S. District Judge Carl Barbier is overseeing this MDL.

Federal MDL 2:10-md-2179

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