Case Number: 2017-CA-0388

Judge: SANDRA CABRINA JENKINS

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Val P. Exnicios
W. Scott Hastings
Randall A. Smith

Defendant's Attorney: James M. Garner
Peter L. Hilbert Jr.
Joshua S. Force
Ashley Gremillion Coker

Description: Since the early 1980s, Violet Dock had owned and operated a 75-acre
private industrial port on the Mississippi River in St. Bernard Parish (the
“Property”). Until 2009, Mr. Ruppel was a shareholder/member of Violet Dock.
At that time, Mr. Ruppel was nearing 90 years old, and he divested himself of his
minority interest in Violet Dock.
In December 2010, St. Bernard Port filed a Petition for Expropriation of the
Property. Violet Dock challenged the constitutionality of the taking and, in the
alternative, the amount that St. Bernard Port deposited as the purported fair market
value of the Property.
During the 2013 just compensation trial, St. Bernard Port learned that on
September 15, 2009, Mr. Ruppel had sold his minority interest in the Property
(approximately 34%) to his child and grandchildren. Several months before, Mr.
Ruppel had retained Chaffe, which provided investment banking and consulting
services, to value his membership interest in the Property for tax and estate
planning purposes. The report valuing Mr. Ruppel’s interest in the Property was
issued by Chaffe on May 31, 2009 (the “Chaffe Report”).

1 In this matter, our court has already decided that “the determination of discovery questions as to one who is not a party to the case is a final appealable judgment.” St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., 14-0286, p. 1 (La. App. 4 Cir. 8/27/14), 147 So.3d 1266, 1266 n.1. Thus, the proper vehicle for seeking judicial review of these final judgments is an appeal, and not an application for supervisory writs. Douglass v. Alton Ochsner Med. Found., 96-2825, p.4 (La. 6/13/97), 695 So.2d 953, 956. Because this court consolidated Ruppel/Chaffe’s writ application with Violet Dock’s appeal, we address both.


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In the middle of the just compensation trial, St. Bernard Port issued
subpoenas and subpoenas duces tecum to Mr. Ruppel and Chaffe, who were not
parties to the expropriation. St. Bernard Port specifically sought production of the
Chaffe Report.2 Ruppel/Chaffe objected, and filed Motions to Quash, for
Protective Order and for Costs, contending that the Chaffe Report was privileged
and contained confidential information, and that St. Bernard Port failed to meet its
burden of proving both good cause and relevance to justify the production of
documents from non-parties. St. Bernard Port responded with a Motion to
Compel. The trial court granted the Motion to Compel, denied the Motions to
Quash, and ordered Ruppel/Chaffe to produce the Chaffe Report.
Ruppel/Chaffe appealed the trial court’s December 11, 2013 judgment
denying their Motions to Quash the subpoenas and subpoenas duces tecum. On
August 27, 2014, this court reversed the trial court, finding that it had abused its
discretion in denying Ruppel/Chaffe’s Motions to Quash. St. Bernard Port,
Harbor & Terminal Dist. v. Violet Dock, Inc., 14-0286, p. 9 (La. App. 4 Cir.
8/27/14), 147 So.3d 1266, 1270. Specifically, this court found that the discovery
sought by St. Bernard Port was not relevant to the issue of just compensation and
that St. Bernard Port had not established good cause. After reversing the trial
court’s judgment, this court stated:
Because the judgment appealed from is silent as to the issue of costs, we are remanding this matter to the trial court for consideration as to whether costs should be awarded to Mr. Ruppel and Chaffe &
2 St. Bernard Port also sought to compel Mr. Ruppel, aged 94, to testify at the just compensation trial. Mr. Ruppel died on February 4, 2015, and his succession representative, Paul Simmons, was appointed to serve as legal successor, and was substituted for Mr. Ruppel in this matter.


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Associates in light of our conclusion that the trial court abused its discretion in denying the non-party appellants’ motions to quash.
In the trial court, Ruppel/Chaffe filed a Motion for Costs, seeking attorney’s
fees and costs incurred in quashing the subpoenas, pursuant to La. C.C.P. arts.
1426(B) (“Protective orders”), 1469(4) (“Motion for order compelling discovery”),
and 1420(D) (“Signing of discovery requests, responses, or objections”), which
authorize an award of “reasonable expenses, . . . including attorney’s fees.” In the
Motion for Costs, Ruppel/Chaffe requested more than $376,000.00 in attorney’s
fees and other expenses incurred by Ruppel/Chaffe through July 31, 2015. In
response, St. Bernard Port propounded Interrogatories and Requests for Production
of Documents (“Discovery Requests”) on Ruppel/Chaffe, seeking: (1) all
correspondence between Mr. Ruppel and Violet Dock, including their attorneys,
concerning the subpoenas referenced in the Motion for Costs; and (2) all
correspondence between Chaffe and Violet Dock, including their attorneys,
concerning the subpoenas referenced in the Motion for Costs. Ruppel/Chaffe
objected to the Discovery Requests on the grounds that they were vague,
overbroad, unduly burdensome, not reasonably calculated to lead to the discovery
of admissible evidence, and sought documents that were irrelevant and were
protected by the attorney-client, common interest, and other related privileges.
Thereafter, Ruppel/Chaffe produced unredacted billing statements from its
attorneys documenting the time spent in quashing the subpoenas issued in the
expropriation trial. Ruppel/Chaffe and St. Bernard Port also exchanged expert
reports regarding the reasonableness of the requested attorney’s fees and costs.


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On April 8, 2016, St. Bernard Port filed a Motion to Compel, asserting that,
in addition to the unredacted attorney invoices, it was entitled to discover all of the
underlying documents described in the invoices. St. Bernard Port argued that its
requests for the underlying communications were “aimed at determining whether
all the costs asserted by Ruppel/Chaffe in their motion [for costs] are related to
work regarding those efforts to quash the subpoenas.” St. Bernard Port insisted it
“[could] not ascertain with certainty whether the charges by Ruppel/Chaffe [were]
relevant to the subpoena[s] without the underlying communications.”
Ruppel/Chaffe and Violet Dock filed an opposition to the Motion to Compel
and a Motion for a Protective Order, arguing that the communications sought by
St. Bernard Port were protected by the attorney-client privilege, common-interest
privilege, and the work-product doctrine. They also argued that these underlying
documents were irrelevant and that the Discovery Requests were unduly
burdensome.
After a hearing, the trial court rendered a judgment on May 31, 2016,
partially granting the Motion to Compel as follows:
 Ruppel/Chaffe was ordered to produce all communications sent to Violet Dock after the sale of Mr. Ruppel’s interest in the Property that specifically pertained to the defense of the subpoenas issued to Ruppel/Chaffe;  Neither Ruppel/Chaffe nor Violet Dock were required to turn over any communications from Violet Dock to Mr. Ruppel or Chaffe in connection with the issuance of the subpoenas.
On June 7, 2016, St. Bernard Port filed a Motion for Partial New Trial. St.
Bernard Port challenged not only the trial court’s failure to require production of
communications from Violet Dock to Ruppel/Chaffe, but also asked the court to


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order production of “[a]ll communications between Violet Dock or its lawyers and
Ruppel/Chaffe or its lawyers” contained in the billing entries submitted as part of
Ruppel/Chaffe’s Motion for Costs. St. Bernard Port asserted that these
communications were relevant because it was entitled to ensure that the work
included in the billing invoices pertained only to Ruppel/Chaffe’s efforts to quash
the subpoenas issued in the expropriation trial.
On June 10, 2016, Ruppel/Chaffe also filed a Motion for New Trial in which
it agreed to withdraw all claims for attorney’s fees and costs associated with the
communications over which Ruppel/Chaffe and Violet Dock had asserted a
privilege. According to Ruppel/Chaffe, this withdrawal would eliminate any
concerns that the trial court or St. Bernard Port might have regarding the amount of
time spent on the challenged communications, as compared to other items
identified in the same time entry. St. Bernard Port opposed the Motion for New
Trial, arguing that Ruppel/Chaffe had not produced a complete list of the
“withdrawn” communications and that, in any event, such a list could not be
generated without St. Bernard Port’s review of these communications.
After a hearing, the trial court rendered a judgment on December 27, 2016
granting St. Bernard Port’s Motion for Partial New Trial, and denying
Ruppel/Chaffe’s Motion for New Trial.
Violet Dock filed a Motion for Suspensive Appeal. Ruppel/Chaffe filed an
Application for Supervisory Writs. This court consolidated the appeal and the writ
application.


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DISCUSSION
In its appeal, Violet Dock asserts three assignments of error:

(1) The trial court legally erred in ordering production of privileged communications in its May 31, 2016 judgment, and in expanding its prior judgment by granting St. Bernard Port’s Motion for Partial New Trial and denying Ruppel/Chaffe’s Motion for New Trial in its December 27, 2016 judgment.

(2) The trial court legally erred in failing to follow established Louisiana law that permits a litigant to shield from discovery privileged documents and communications by stipulating that it will not refer to or use them at trial.

(3) The trial court erred in ordering the production of privileged communications where they were not relevant to or necessary for Ruppel/Chaffe’s Motion for Costs, and where neither Ruppel/Chaffe nor Violet Dock waived their privilege.

In its Application for Supervisory Writs, Ruppel/Chaffe re-urges the
arguments made by Violet Dock in its appeal, and also raises an additional issue:
Whether a protective order should be issued pursuant to Louisiana Code of Civil Procedure Article 1426(A)(1) to protect [Ruppel/Chaffe] from the continued harassment, oppression, undue burden, and expense of the review, preparation, and production of approximately twenty-five thousand (25,000) pages of communications protected by the attorney-client and work product communications [sic].
Because we find that the trial court erred in denying Ruppel/Chaffe’s Motion
for Protective Order, and ordering Ruppel/Chaffe to produce all underlying
communications referred to in the billing invoices supporting its request for
attorney’s fees, we pretermit any discussion of the alleged privileged nature of the
communications.
Standard of Review
“A trial court has broad discretion in handling discovery matters and an
appellate court should not upset such a ruling absent abuse of discretion.” St.
Bernard Port, 14-0286, p. 5, 147 So.3d at 1268.


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Protective Orders
Ruppel/Chaffe contends that it is entitled to a protective order that
“discovery not be had” because the discovery sought by St. Bernard Port imposes
an undue burden and expense. Ruppel/Chaffe also argues that the discovery
sought is unnecessary because the production of the unredacted attorney invoices,
the reports of experts regarding the reasonableness of the attorney’s fees sought by
Ruppel/Chaffe, and the anticipated depositions of fact and expert witnesses are
adequate to ensure that the charges on the attorney billing statements relate to
efforts to quash the subpoenas.3
“The discovery statutes are to be liberally construed to achieve their
intended objectives.” Stolzle v. Safety & Sys. Assurance Consultants, Inc., 02
1197, p. 2 (La. 5/24/02), 819 So.2d 287, 289. Thus, a party “may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter
involved in the pending action. . . .” La.C.C.P. art. 1422. “There are limitations to
this rule, however, when justice requires that a party or other person be protected
from annoyance, embarrassment, oppression, or undue burden or expense.”
Stolzle, 02-1197, p. 2, 819 So.2d at 289. In particular, “[b]efore ordering discovery
from a third party, which has invoked its right to be protected from undue
hardship, loss, or damage, the trial court must be convinced of the relevancy and
necessity of such discovery in achieving its intended objective.” Channelside
Servs., LLC v. Chrysochoos Group, Inc., 15-0064, p. 19 (La. App. 4 Cir. 5/13/16),
194 So.3d 751, 762, writ denied, 16-1079 (La. 10/12/16), 208 So.3d 373.

3 Likewise, Violet Dock argues that “the invoices, accompanied by the testimony of [Ruppel/Chaffe’s] retained expert (who apparently also was provided the privileged communications) are more than sufficient to support their claims for fees and costs,” and that


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La. C.C.P. art. 1426 governs protective orders, and provides as follows, in
pertinent part:
A. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had . . . . (3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery. (4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.
According to Ruppel/Chaffe, a search of potentially responsive
communications has resulted in more than 25,000 pages that would have to be
assembled and prepared for review, and then reviewed by counsel for
responsiveness and privilege. Then, Ruppel/Chaffe would have to prepare any
responsive communications for production, produce the communications, and then
identify privileged documents on a privilege log. See La. C.C.P. art. 1424(C).
Once the privilege log is submitted, the trial court would be required to determine
which, if any, documents are protected by privileges. As St. Bernard Port
concedes in its brief, the trial court also may order an in camera inspection of the
requested documents.4 See Bd. of Supervisors of La. State Univ. v. Boudreaux’s
Tire & Auto Repair, L.L.C., 13-0444, pp. 15-16 (La. App. 4 Cir. 3/5/14), 133 So.3d
1262, 1272-73 & n.8 (in dispute over award of attorney’s fees, request for in
camera review of documents “reasonable and warranted”); Sercovich v. Sercovich,

“nothing more was required as a matter of law to substantiate [Ruppel/Chaffe’s] fee and cost application.” 4 According to Black's Law Dictionary, in camera review or inspection is defined as “[a] trial judge's private consideration of evidence.” BLACK'S LAW DICTIONARY 828 (9th ed. 2004). The term in camera means: “1. In the judge's private chambers. 2. In a courtroom with all spectators excluded. 3. (Of a judicial action) taken when court is not in session -- Also termed (in reference to the opinion of one judge) in chambers.” Id.



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11-1780, p. 8 (La. App. 4 Cir. 6/13/12), 96 So.3d 600, 604; Sires v. Nat’l Serv.
Corp., 560 So.2d 448, 449 (La. App. 4th Cir. 1990); Lehmann v. Am. Southern
Home Ins. Co., 615 So.2d 923, 926 (La. App. 1st Cir. 1993); Venable v. Smith, 529
So.2d 888, 888 (La. App. 3d Cir. 1988).
Here, we find that the requirement that Ruppel/Chaffe identify and review
tens of thousands of pages of communications referred to in its attorneys’ billing
invoices, along with the preparation of a privilege log and in camera inspection by
the court, is unduly burdensome and wholly unnecessary, given that there are less
onerous and less intrusive methods of ensuring that the billing entries relate only to
work on quashing subpoenas. See Levy v. Maloney, 95-0333, pp. 2-3 (La.
3/24/95), 652 So.2d 522, 523 (directing that trial court issue a protective order
where subpoenas duces tecum were unnecessarily oppressive, and the information
requested could be sought through less invasive discovery devices).
And where, as here, the record supports a finding that a discovery request is
unduly burdensome and unnecessary, La. C.C.P. art. 1426(A) provides that the trial
court may fashion a protective order “[t]hat the discovery may be had only by a
method of discovery other than that selected by the party seeking discovery,” or
“[t]hat certain matters not be inquired into, or that the scope of the discovery be
limited to certain matters.” Although St. Bernard Port has a legitimate interest in
ensuring the reasonableness of the attorney’s fees sought by Ruppel/Chaffe by
means of discovery, we find that St. Bernard Port’s need for this information may
be satisfied by a protective order that does not require wholesale production of all
underlying communications referred to in the billing statements.
We note that St. Bernard Port and Ruppel/Chaffe have retained experts who
have issued reports on the reasonableness of the attorney’s fees sought, and who


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can be deposed prior to the hearing. See Olivier Plantation, L.L.C. v. Parish of St.
Bernard, 13-0497, p. 5 (La. App. 4 Cir. 10/30/14), 151 So.3d 965, 968.
Furthermore, counsel for Ruppel/Chaffe has advised the trial court and St. Bernard
Port that she and the other billing attorneys can testify about the time charged on
the billing invoices. See Fruge v. Uiterwyk, 97-1252, p. 5 (La. App. 4 Cir.
3/25/98), 709 So.2d 357, 359-60 (plaintiff’s attorney testified about the
reasonableness of his fees by “[going] through his billing statements month by
month and delineat[ing] what work was done on which issue”).
We therefore conclude that the trial court abused its discretion in denying
Ruppel/Chaffe’s Motion for a Protective Order and granting St. Bernard Port’s
Motion to Compel and Motion for Partial New Trial. We find that the challenged
Discovery Requests are unduly burdensome, expensive, and unnecessary, given
that other discovery methods, such as the depositions of experts and billing
attorneys, are available to St. Bernard Port to ensure that the work described in the
billing invoices pertains only to Ruppel/Chaffe’s efforts to quash the subpoenas
issued in the expropriation trial. Accordingly, we reverse the trial court’s May 31,
2016 and December 27, 2016 judgments, and remand this case to the trial court
with the instruction to enter a protective order consistent with this opinion.
Ruppel/Chaffe’s Request for Attorney’s Fees and Costs
In its writ application, Ruppel/Chaffe seeks attorney’s fees and costs
incurred in connection with its opposition to St. Bernard Port’s Motion to Compel,
pursuant to La. C.C.P. arts. 1426(B), 1469(4), and 1420(D). Again, as the
judgments are silent on this issue, we remand this matter to the trial court for
consideration as to whether attorney’s fees and costs should be awarded to
Ruppel/Chaffe in light of our conclusion that the trial court abused its discretion.

Outcome: For these reasons, we reverse the trial court’s May 31, 2016 and December
27, 2016 judgments. We grant the writ application. We remand this matter with
instructions that the trial court enter a protective order consistent with this opinion, and to determine whether Ruppel/Chaffe is entitled to attorney’s fees and costs.

JUDGMENTS REVERSED; WRIT GRANTED; REMANDED WITH INSTRUCTIONS

Plaintiff's Experts:

Defendant's Experts:

Comments: Monique M. Lafontaine