PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TEXAS BRINE COMP ANY, LLC, Defendant - Appellant, and
OCCIDENTAL CHEMICAL CORPORATION, Defendant - Appellee.

--------------------------------------- FRONTIER INTERNATIONAL GROUP, LLC, Witness.

––––––––––––––––––– –––––––––––––––– TEXAS BRINE COMP ANY, LLC, Defendant, and
OCCIDENTAL CHEMICAL CORPORATION, Defendant - Appellee.

--------------------------------------- FRONTIER INTERNATIONAL GROUP, LLC, Witness - Appellant. No. 17-6075

No. 17-6076

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### January 19, 2018
Elisabeth A. Shumaker Clerk of Court2 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:16-CV-01026-D)

________________ _________________ Martha Y. Curtis, Sher Garner Cahill Rich ter Klein & Hilbert, LLC, New Orleans, Louisiana (James M. Garner, Peter L. Hilber t, Jr., Kevin M. McGlone, Sher Garner Cahill Richter Klein & Hilbert, LLC, New Or leans, Louisiana, and Gerald L. Hilsher, Julia A. Palmer, McAfee & Taft, APC, Tulsa, Oklahoma, on the brie fs), for DefendantAppellant. Jeremy K. Beecher (Bethany W. Kristovich with him on the br iefs), Munger, Tolles & Olsen LLP, Los Angeles, California, for Defendant-Appellee. Geren T. Steiner (Anton J. Rupert with him on the briefs), Rupert & Steiner, PLLC, Oklahoma City, Oklahoma, for Witness-Appellant.

________________ _________________ Before LUCERO , BALDOCK , and HARTZ , Circuit Judges.

________________ _________________ BALDOCK , Circuit Judge.

________________ _________________ I. Defendant Texas Brine Company, LLC (T exas Brine) operates brine wells on land owned by Co-Defendant Occidental Chem ical Corporation (Oxy) in Louisiana. In August 2012, a sinkhole appeared near one of these wells. After the sinkhole appeared, Texas Brine began cl ean-up efforts. To manage this crisis, Texas Brine consulted with others. In December 2012, Texas Brine retained Frontier International Group, LLC (Frontier), an Oklahoma-based consulting firm, for “emergency management, state and local government rela tions, community relations, litigation settlement strategy, and media comm unications.” Some time later, Texas Brine retained Brooks Altshul er, an attorney and Frontier’ s owner, in his individual3 capacity to advise the compa ny on response and remediati on efforts and to negotiate with government agencies. Later, Texa s Brine retained Frontier as a consulting expert for trial preparation. Litigation began soon after the sinkhole appeared, with multiple plaintiffs suing Texas Brine and Oxy in the Eastern Dist rict of Louisiana. In that suit, the plaintiffs alleged the neglig ent operation of a brine well re sulted in the sinkhole and caused damage to the plaintiffs’ properties. In this underlying litigation, Texas Brine filed a cross-claim against Oxy seeking i ndemnity for $100 million spent responding to the sinkhole crisis, $6.5 million of wh ich Texas Brine claims is for the work Frontier performed. To veri fy the work Frontier perform ed and the cost of such work, Oxy issued a subpoena duces t ecum to nonparty Fr ontier, requesting production of eight categories of documents related to services Frontier provided Texas Brine. 1 In response, Texas Brine filed a motion to quash the subpoena in the

1 The eight categories requested are:
1. Documents concerning the Napoleonv ille Salt Dome in Louisiana; 2. Documents concerning the sinkhole occurrence in 2012; 3. Documents concerning the events lead ing up to the sinkhole occurrence; 4. Communications with Texas Brine concer ning the sinkhole occurrence and any aspect of the ongoing litigation pe rtaining to the sinkhole occurrence; 5. Communications with Sonn y Cranch or any employee of Cranch Hardy & Associates concerning the sinkhole occu rrence and any aspect of the ongoing litigation pertaining to the sinkhole occurrence; 6. Communications with members of the me dia or public concerning the sinkhole occurrence and the ongoing litigation pe rtaining to the sinkhole occurrence; 7. Public statements generate d by or on behalf of Texa s Brine or any other entity in connection with the sinkhole occurre nce and any aspect of the ongoing litigation pertaining to the sinkhole occurrence; and4 Western District of Oklahoma, the dist rict where compliance is required. See Fed. R. Civ. P. 45(d)(3)(A). Proceeding under th e uncontested assumption that Louisiana law applied, Texas Brine fi rst claimed the attorney-clie nt privilege protected the subpoenaed communications. In a written order, the district court gr anted the motion in part and denied it in part. Leblanc v. Texas Brine Co. , No. 16-1026, 2017 WL 913801, at *1 (W.D. Okla. Mar. 7, 2017). In its order, the court noted that Texas Brine failed to comply with Fed. R. Civ. P. 45(e)(2)(A), which requi res a person moving to quash a subpoena under the claim of privilege to “describe the nature of the withheld documents, communications, or tangible things in a ma nner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Instead, Texas Brine asserted a “bla nket claim of privilege.” Leblanc , 2017 WL 913801, at *4. Only in the context of Texas Brine’s claim of a bl anket privilege did the court address whether Louisiana’s attorney-client privilege statute extends the privilege to a public relations fi rm and its agents. 2 As Louisiana courts have not addressed this

8. Any interview transcripts, video footag e, newspaper clippings, online articles, or other published, printed or dist ributed media concerning the sinkhole occurrence and any aspect of the ongoi ng litigation pertaining to the sinkhole occurrence.

2 Louisiana’s attorney-cli ent privilege statute, in relevant part, protects “confidential communication[s], whether oral, written, or otherw ise, made for the purpose of facilitating the rendition of prof essional legal services to the client,” including communications with a “representative of a lawyer .” La. Code Evid. Ann. art. 506(B) (2017). A “representative of a lawyer” is “a person engaged by the lawyer to assist the lawyer in the lawyer’s rendition of pr ofessional legal services.” Id. 506(A)(4).5 exact issue, the court looked to Wigmore’ s definition of attorney-client privilege, which protects “legal advice.” Id. (quoting 8 J. Wigmore, Evidence in Trials at
Common Law § 2292, at 554 (J. McNaug hton rev. ed. 1961)). Without a privilege log before it, the court conc luded that much of the work Frontier performed for Texas Brine did not constitute “legal advice” and, thus, was not protected by the attorneyclient privilege. The court finished its discussion on attorney-c lient privilege by stating: “the Court denies Texas Brine’s Motion as to attorney-client privilege, absent a specific showing of the legal natur e of each withheld communication .” Id. (emphasis added). Texas Brine also argued the work prod uct doctrine governed the subpoenaed communications. The court reached a simi lar conclusion regard ing this argument, stating the work product doctrine does not protect a public relati ons firm’s written materials regarding business advice or an a ttorney’s non-litigation activity. Again, the court emphasized much of the communications were not protected, “ absent a specific showing of the legal nature of each withheld communication, and that it was specifically created in anticipation of litigation .” Id. at *5 (emphasis added). The district court concluded its orde r by again emphasizing “Texas Brine’s conclusory, blanket assertions of privilege are insufficient to quash the subpoena.” Id. (emphasis added). The cour t required Texas Brine to produce a privilege log for any communications that it believed were protected. With respect to the eight categories of subpoenaed documents, the c ourt ruled as follows : Frontier need not produce category (1) because the request was overbroad; Frontier must produce the6 documents requested in categories (2), (3), (4), (5), and (7) “ subject to privilege screening and production of a log consistent with Fed. R. Civ. P. 26(b)(5)(A) ”; and Frontier must produce the documents re quested in categories (6) and (8). 3 Id. (emphasis added). Texas Brine filed a timely notice of appeal. 4 Texas Brine then filed a motion to stay the district court’s order pending these proceedings, whic h the district court denied. Frontier complied with the district court’s order and ha s, at this point, produced around 20,000 documents and a priv ilege log regarding the confidentiality of the withheld documents.

3 A log consistent with Fed. R. Civ. P. 26(b)(5)(A) is the same log as required by Fed. R. Civ. P. 45(e)(2)(A). The difference is that Fed. R. Civ. P. 26 governs discovery in general, while Fed. R. Civ. P. 45 governs subpoe nas specifically.

4 After the district court’ s ruling, Frontier filed a no tice of appearance in the district court and also sought to appeal the court’s order. Under these circumstances, Frontier, a nonparty to this suit, cannot appear for th e first time on appeal. In general, only parties to a lawsuit or those who properly become pa rties may appeal an adverse judgment. Marino v. Ortiz , 484 U.S. 301, 304 (1988). The exception to this rule is “where the nonparty [1] has a uniqu e interest in the litig ation and [2] becomes involved in the resolution of that interest in a timely fashion both at the district court level and on appeal .” Abeyta v. City of Albuquerque , 664 F.3d 792, 796 (10th Cir. 2011) (emphasis added). Regardless of whet her Frontier has a uniqu e interest in this litigation, it plainly fails to meet the second prong of this test. Even though Frontier could have filed a motion to qu ash pursuant to Fed. R. Civ. P. 45(d)(3), it did not. We acknowledge that, in an affidavit atta ched to Texas Brine’ s motion to quash the subpoena, Altshuler stated th at Frontier objected to the subpoena. This statement falls short of what Fed. R. Civ. P. 45(d)(3) requires of Fr ontier. As such, Frontier did not become involved in this case in a timely fashion at the district court level, and this Court lacks jurisdiction to review Frontier’s challenge to the district court’s order. See id. at 797.7 II. At the outset, Oxy claims this dispute is not ripe for adjudication because the district court did not actually order produc tion of any allegedly privileged material. Instead, the court ordered produ ction of non-privileged mate rial to Oxy subject to a privilege log. Until the district court or ders production of privileged material, Oxy forcibly argues, there is no dispute to reso lve. In response, Te xas Brine asserts the court erred in defining the scope of the privilege too narrow ly and “order[ing] production of documents that are arguably privileged co mmunications.” Appellant Reply Brief, 2. In other words, Texas Brine argues in a vacuum that the court construed Louisiana law too narrowly. But the court has yet to apply Louisian a law to any contested document. We will not resolve a dispute “if it rests upon ‘contingent future events that may not occur as anticipated or indeed may not occur at all.’” United States v. Bennett , 823 F.3d 1316, 1326 (10th Cir. 2016) (quoting Texas v. United States , 523 U.S. 296, 300 (1998)). This principle—the ripeness doctrine—derives from both constitutional and prudential concerns. Id. at 1325. The purpose of the ripe ness doctrine is to prevent the premature adjudication of abstract claims. New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495, 1499 (10th Cir. 1995). To determin e whether a dispute is prudentially ripe, this Court “balance[s] the fitness of the issue for judicial review with the hardship to the part ies from withholding review.” Bennett , 823 F.3d at
1326

.8 First, in determining the fitness of th e issue for review, th is Court considers “whether determination of the merits turns upon strictly legal issues or requires facts that may not yet be sufficiently developed .” Id. (emphasis added) (quoting Kan. Judicial Review v. Stout , 519 F.3d 1107, 11 18 (10th Cir. 2008)). Texas Brine characterizes the issue before us as a legal one, arguing th e district court interpreted Louisiana’s attorney-client privilege stat ute too narrowly. A ssessing a claim of attorney-client privilege, or even a claim of work prod uct doctrine, when a person withholds subpoenaed information, however, necessarily requires a sufficient factual record. “Only when the district court ha s been exposed to the contested documents and the specific facts . . . ca n it make a principled dete rmination as to whether the attorney-client privilege in fact applies. Any attemp t to make this type of determination without this factual foundati on amounts to nothing more than a waste of judicial time and resources.” Holifield v. United States , 909 F.2d 201, 204 (7th Cir. 1990) (citations omitted). This is w hy Fed. R. Civ. P. 45(e)(2)(A) requires a person or entity withholding in formation under a claim of privilege or work product to “describe the nature of the withhe ld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Without knowing the nature of the documents, neither the requesting party nor th e court can possibly a ssess the claim. In this case, Fed. R. Civ. P. 45(e)(2)(A) required the pr oduction of a privilege log. See In re Grand Jury Subpoena , 274 F.3d 563, 575–76 (1st Cir. 2001). Prior to9 appealing, Texas Brine did not produce a privilege log regarding the documents Frontier withheld. While the district court could have ru led otherwise, the court gratuitously allowed Texas Brine a sec ond chance to produce a privilege log regarding the withheld documents. 5 Texas Brine instead appealed , effectively arguing it should not have to produce any documents or a privileg e log. Why Texas Brine believes it can assert a blanket claim of privilege over its communications w ith Frontier without complying with Fed. R. Civ. P. 45(e)(2)(A) or Fed. R. Civ. P. 26(b)(5)(A) is beyond

us. 6 The panel pressed Texas Brine on this subject at oral argument. Texas Brine responded that other courts have granted a blanket pr ivilege over communications between a client and public relations firm without the be nefit of a privilege log or viewing the documents in camera

. See In re Copper Mkt. Antitrust Litig. , 200 F.R.D. 213 (S.D.N.Y. 2001); In re Grand Jury Subpoenas Dated March 24, 2003 , 265 F.

5 See, e.g. , Fed. R. Civ. P. 45 advisory committee’s note to 1991 amendment (“A person claiming a privilege or prot ection who fails to provide adequate information about the privilege or prot ection claim to the party seeking the information is subject to an order to show cause why the person s hould not be held in contempt under subdivision [(g)].”); In re Grand Jury Subpoena , 274 F.3d at 576 (“A party that fails to submit a privilege log is deemed to waive the underlying privilege claim.”); Dorf & Stanton Comms., In c. v. Molson Breweries , 100 F.3d 919, 923 (Fed. Cir. 1996) (affirming the district court’ s determination that the attorney-client privilege had been waived b ecause the party asserting the privilege failed to comply with Fed. R. Civ. P. 45(e)(2)(A) and 26(b)(5)).

6 We well understand Texas Brine is not the holder of the documents. But as the one asserting attorney-client privilege , Texas Brine has the burden to show the documents are privileged. See In re Grand Jury Proceedings , 616 F.3d 1172, 1183 (10th Cir. 2010). We do not see why Te xas Brine, having retained Frontier’s services, could not have obtaine d a privilege log from Frontier.10 Supp. 2d 321 (S.D.N.Y. 2003). Besides the fact that neither In re Copper Market or In re Grand Jury Subpoenas are binding on this Court, the courts in those cases did in fact either have a privilege log or inspect the documents in camera

. See In re Copper Mkt. Antitrust Litig. , 200 F.R.D. at 215 (“Plaintiffs . . . move to compel the production of documents listed on the privileg e log (the ‘Privilege Log’) produced by non-party . . . in response to a sub poena . . . .” (emphasis added)); In re Grand Jury Subpoenas , 265 F. Supp. 2d at 323 (“The Court initially required submission of the documents withheld by Firm on grounds of privilege for in camera inspection.”). 7 Without the benefit of a privilege log or in spection of documents, we are left with an insufficient factual record—the exact problem Fed. R. Civ. P. 45(e)(2)(A) aims to prevent. Texas Brine has only itself to bl ame for the predicament in which it finds itself. Without the facts neces sary to assess Texas Brine’ s claims of attorney-client privilege and work product, this dis pute is not fit for appellate review. While a lack of fitness in itself might not render an appeal unripe, we also must consider the hardship to the parties. In determining the hardship to the parties, this Court considers whether withholding re view will place the parties in “a direct and immediate dilemma.” Bennett , 823 F.3d at 1327 (quoting Stout , 519 F.3d at

7 Even an attorney subpoenaed to pr oduce documents would have to do more than assert a blanket clai m of privilege to succeed in its motion to quash. See, e.g. , In re Grand Jury Proceedings , 616 F.3d at 1182–83 (explaining that not all communications between attorney and client are privileged and that an attorney must do more than “mak[e] a blanket claim”); In re Grand Jury Subpoena , 831 F.2d 225, 227 (11th Cir. 1987) ( holding that “an attorney seeking to quash a subpoena must assert the attorney-client pr ivilege on a document-by-docum ent basis” rather than a blanket claim of privilege).11 1118). Withholding review of the district c ourt’s order in this case will do no such thing. Texas Brine contends the cour t’s order required it to produce “arguably privileged communications.” The order simp ly did not. It re quired production of materials in (2), (3), (4), (5), and (7) “ subject to privilege screening and production of a log consistent with Fe d. R. Civ. P. 26(b)(5)(A) .” Leblanc v. Texas Brine Co. , No. 16-1026, 2017 WL 913801, at *5 (W.D. Okla. Mar. 7, 2017) (emphasis added). In other words, the district court allo wed Texas Brine to screen the requested documents, withhold the “arguably privile ged communications,” and produce a privilege log describing the nature of th e withheld documents “in a manner that, without revealing information itself privilege d or protected, will enable other parties to assess the claim.” See Fed. R. Civ. P. 26(b)(5)(A). This is no hardship. As explained above, this is exactly what every “person withhol ding subpoenaed information under a claim that it is priv ileged or subject to protection as trialpreparation material” must do. Fed. R. Ci v. P. 45(e)(2)(A). Texas Brine’s hardship at this point is that, in response to Frontier’s producti on of a privilege log, Oxy might file a motion to compel production of docu ments that Frontier has withheld. If this happens, the district court might rule in Oxy’s favor on th e motion. This possibility is far from “a direct and immediate dilemma.” See Bennett , 823 F.3d at 1327 (holding multiple contingencie s rendered an appellant’s pot ential injury “a destiny far from certain” and, thus , the claim was not ri pe for adjudication). Because both the factual r ecord is insufficient and the court did not require production of protected documen ts, Texas Brine’s appeal is not ripe for our review.12 Accordingly, Frontier’s appeal, No. 17-6075, is DISMISSED for wa nt of jurisdiction, as Frontier did not properly become involved in this litigation at the district court level; Texas Brine’s appeal, No. 17-6076 , is DISMISSED for lack of ripeness. 8

8 Pending before this Court are also tw o motions: Texas Brine’s motion to file Volume III of the Appendix under seal in case number 17-6075 and Oxy’s motion to file Volume I of the Supplemental Appendix under seal in case number 17-6076. We GRANT the motions to seal th ese limited parts of the r ecord until the conclusion of all pending litigation regarding the sinkhole.