Louisiana Record

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Legal memo accidentally given to plaintiffs in radiation exposure lawsuit stricken by appeals court

By Lizzy Fitzsousa | May 28, 2014

NEW ORLEANS – A federal appeals court has vacated a district court’s ruling that an in-house legal memo prepared for Exxon Mobil concerning radioactive contamination was not protected by attorney-client privilege.

The U.S. Court of Appeals for the Fifth Circuit vacated and remanded the case to U.S. District Court for the Eastern District of Louisiana involving a case that was lodged by Exxon Mobil Corporation against Clarence Hill, Timothy J. Falcon, Jeremiah A. Sprague and Frank M. Buck Jr.

The memo in question, referred to as the "Stein" memo, was written by Rosemary Stein, an in-house lawyer for Exxon Mobil during contract negotiations between Exxon and Intracoastal Tubular Services (ITCO). The memo offered legal advice to withhold certain test results garnered from Exxon funded tests at ITCO sites where naturally occurring radioactive material contamination was alleged. In the course of discovery involved in a 2008 case, Exxon accidentally produced a number of allegedly privileged documents including the Stein memo. The attorney in question returned Exxon’s documents and did not object to Exxon’s assertion of privilege, but kept a copy of the memo and distributed it to other lawyers.

Exxon moved to enforce its attorney-client privilege over the memo in the case Exxon Mobil v. Hill (no.13-236) by having it stricken from the record. The district court denied the motion and dismissed the final intervention, holding that the Stein memo qualified primarily as business advice rather than legal advice. The appeals court challenged the finding, saying that the memo was prepared to render legal services to Exxon, contained legal language and was prepared in response to transaction matters.

The appeals court therefore validated the Stein memo’s protection as privileged and dismissed the lower court’s dismissal of Exxon’s intervention.

The appeal was heard by Circuit Judges Jennifer W. Elrod, Leslie Southwick and Jerry E. Smith.

Case No. 13-30830.

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