Case: 23-20350 Document: 30 Page: 1 Date Filed: 08/14/2023
`
`No. 23-20350
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`IN RE ANADARKO PETROLEUM CORPORATION SECURITIES
`LITIGATION
`
`
`
`On Petition for Writ of Mandamus to the United States District Court
`for the Southern District of Texas,
`Docket No. 4:20-CV-576.
`Honorable Charles R. Eskridge, III
`
`PLAINTIFF-RESPONDENT’S OPPOSITION
`TO PETITION FOR WRIT OF MANDAMUS
`
`ROBBINS GELLER RUDMAN
` & DOWD LLP
`JOSEPH D. DALEY
`DANIEL S. DROSMAN
`RACHEL L. JENSEN
`655 West Broadway, Suite 1900
`San Diego, CA 92101
`Telephone: 619/231-1058
`619/231-7423 (fax)
`
`KENDALL LAW GROUP, PLLC
`JOE KENDALL
`3811 Turtle Creek Blvd., Suite 1450
`Dallas, TX 75219
`Telephone: 214/744-3000
`214/744-3015 (fax)
`
`Counsel for Plaintiff-Respondent
`
`
`
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`Case: 23-20350 Document: 30 Page: 2 Date Filed: 08/14/2023
`
`In re Anadarko Petroleum Corporation Securities Litigation
`Fifth Circuit No. 23-20350
`
`
`CERTIFICATE OF INTERESTED PERSONS
`
`The undersigned counsel of record certifies that the following listed persons
`
`and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the
`
`outcome of this case. These representations are made in order that the judges of this
`
`Court may evaluate possible disqualification or recusal.
`
`1.
`
`Plaintiff-Respondent and Class: All persons or entities that purchased
`
`or otherwise acquired Anadarko Petroleum Corporation’s publicly traded common
`
`stock between February 20, 2015 and May 2, 2017, inclusive, and were damaged
`
`thereby; Norfolk County Council as Administering Authority of the Norfolk Pension
`
`Fund; Iron Workers Local #580 Joint Funds; Building Trades United Pension Trust
`
`Fund.
`
`2.
`
`Counsel for Plaintiff-Respondent: Robbins Geller Rudman & Dowd
`
`LLP, 655 West Broadway, Suite 1900, San Diego, California 92101 (Mark Solomon,
`
`Joseph D. Daley, Daniel Drosman, Rachel Jensen, Luke Brooks, Hillary Stakem);
`
`Kendall Law Group, PLLC, 3811 Turtle Creek Boulevard, Suite 1450, Dallas, Texas
`
`75219 (Joe Kendall).
`
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`Case: 23-20350 Document: 30 Page: 3 Date Filed: 08/14/2023
`
`In re Anadarko Petroleum Corporation Securities Litigation
`Fifth Circuit No. 23-20350
`
`
`3.
`
`Defendants-Petitioners: Anadarko Petroleum Corporation, an indirect
`
`wholly owned subsidiary of Occidental Petroleum Corporation; R.A. Walker;
`
`Robert G. Gwin; Robert P. Daniels; Ernest A. Leyendecker, III.
`
`4.
`
`Counsel for Defendants-Petitioners: Cravath, Swaine & Moore LLP,
`
`825 Eighth Avenue, New York, New York 10019 (Kevin Orsini, Lauren
`
`Rosenberg); Shipley Snell Montgomery LLP, 712 Main Street, Suite 1400, Houston,
`
`Texas 77002 (George Shipley).
`
`5.
`
`Other Entities: Insurers of Defendants-Petitioners (National Union Fire
`
`Insurance Company of Pittsburgh, Pa., XL Specialty Insurance Company, Zurich
`
`American Insurance Company, U.S. Specialty Insurance Company, ACE American
`
`Insurance Company, American International Reinsurance Company, LTD.,
`
`Freedom Specialty Insurance Company, RSUI Indemnity Company, Navigators
`
`Insurance Company, AXIS Insurance Company, QBE Insurance Corporation,
`
`Continental Casualty Company, Berkley Insurance Company, Beazley Insurance
`
`Company, Westchester Fire Insurance Company, Illinois National Insurance
`
`Company); Occidental Petroleum Corporation, a publicly held corporation that has
`
`no parent corporation. Berkshire Hathaway Inc. indirectly owns 10% or more of the
`
`issued and outstanding shares of common stock of Occidental Petroleum
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`Case: 23-20350 Document: 30 Page: 4 Date Filed: 08/14/2023
`
`In re Anadarko Petroleum Corporation Securities Litigation
`Fifth Circuit No. 23-20350
`
`Corporation. No other publicly traded company owns more than 10% of the
`
`common stock of Occidental Petroleum Corporation.
`
`6.
`
`District Court Judge: Hon. Charles R. Eskridge, III, U.S. District Judge,
`
`Southern District of Texas.
`
`DATED: August 14, 2023
`
`
`
`
`
`
`
`
`
`
`
`ROBBINS GELLER RUDMAN
` & DOWD LLP
`JOSEPH D. DALEY
`DANIEL S. DROSMAN
`RACHEL L. JENSEN
`
`
`s/Joseph D. Daley
`JOSEPH D. DALEY
`655 West Broadway, Suite 1900
`San Diego, CA 92101
`Telephone: 619/231-1058
`619/231-7423 (fax)
`
`Attorneys for Plaintiff-Respondent
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`Case: 23-20350 Document: 30 Page: 5 Date Filed: 08/14/2023
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`
`
`STATEMENT REGARDING ORAL ARGUMENT
`
`While Plaintiff does not believe oral argument is required in this matter—
`
`which the district court correctly described as a “garden-variety privilege dispute”
`
`(MR588)—nonetheless its counsel stands ready to accommodate the Court’s wishes
`
`if oral argument may possibly be helpful.
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`
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`Case: 23-20350 Document: 30 Page: 6 Date Filed: 08/14/2023
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`TABLE OF CONTENTS
`
`Page
`
`PRELIMINARY STATEMENT ..................................................................... 1
`
`COUNTERSTATEMENT OF ISSUE PRESENTED .................................... 3
`
`
`I.
`
`II.
`
`III. APPLICABLE STANDARDS OF REVIEW ................................................. 3
`
`A. Mandamus Generally ............................................................................ 3
`
`B.
`
`The District Court’s Wide-Ranging Discretion .................................... 4
`
`IV. STATEMENT OF THE CASE ....................................................................... 5
`
`A.
`
`Factual Background ............................................................................... 5
`
`1.
`
`2.
`
`3.
`
`A whistleblower’s complaint spurs Anadarko board
`action, a law firm’s internal investigation, and selective
`disclosure of the investigation’s procedures and results to
`third parties. ................................................................................ 5
`
`Defendants’ strategic use of the Termination Letter and
`Norton Rose’s investigation even as they refused to turn
`over waived materials. ................................................................ 7
`
`Defendants concede at oral argument that they will use
`the Termination Letter as a sword based upon Norton
`Rose’s investigation and presentation, while Plaintiff
`informs the court that a Norton Rose attorney’s
`declaration is demonstrably inaccurate. ...................................... 9
`
`B.
`
`The district court issues its Order finding waiver and
`compelling document production, along with its follow-on
`denial of reconsideration. .................................................................... 11
`
`1.
`
`2.
`
`Order finding waiver and compelling production. ................... 11
`
`Denial of reconsideration/§1292(b) certification. ..................... 15
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`Case: 23-20350 Document: 30 Page: 7 Date Filed: 08/14/2023
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`
`V.
`
`
`
`Page
`
`REASONS WHY THE WRIT SHOULD NOT ISSUE ................................ 16
`
`A. Defendants fail to show their “clear and indisputable” right to
`mandamus relief. ................................................................................. 16
`
`1.
`
`2.
`
`Defendants fail to transform a “garden-variety privilege
`dispute” with “intensely factual” underpinnings into a
`question of legal error requiring this Court’s intercession. ...... 17
`
`Defendants’ attempt to dispute their “subject matter”
`waiver fails on myriad record facts. .......................................... 23
`
`B.
`
`This is not an “appropriate” case for extraordinary interlocutory
`review. ................................................................................................. 31
`
`VI. CONCLUSION .............................................................................................. 34
`
`
`
`
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`Case: 23-20350 Document: 30 Page: 8 Date Filed: 08/14/2023
`
`TABLE OF AUTHORITIES
`
`Page
`
`
`CASES
`Allen v. C & H Distribs., L.L.C.,
`813 F.3d 566 (5th Cir. 2015) ................................................................................ 5
`Bankers Life & Cas. Co. v. Holland,
`346 U.S. 379 (1953) ............................................................................................ 16
`Cheney v. United States Dist. Ct.,
`542 U.S. 367 (2004) .....................................................................................passim
`Crain v. City of Selma,
`952 F.3d 634 (5th Cir. 2020) ................................................................ 4, 5, 20, 32
`Doe 1 v. Baylor Univ.,
`335 F.R.D. 476 (W.D. Tex. 2020) .......................................................... 13, 23, 30
`Ergo Sci. v. Martin,
`73 F.3d 595 (5th Cir. 1996) ................................................................................ 22
`Forever Green Ath. Fields, Inc. v. Babcock L. Firm, LLC,
`2014 U.S. Dist. LEXIS 416 (M.D. La. Jan. 3, 2014) ......................................... 29
`Gen. Elec. Co. v. Joiner,
`522 U.S. 136 (1997) .......................................................................................... 5, 6
`Hanon v. Dataproducts Corp.,
`976 F.2d 497 (9th Cir. 1992) .............................................................................. 21
`Harte v. Bd. of Comm’rs of the Cnty. of Johnson,
`940 F.3d 498 (10th Cir. 2019) .............................................................................. 4
`In re Ariz.,
`2022 U.S. App. LEXIS 10160 (9th Cir. Apr. 14, 2022) ..................................... 22
`In re Avantel, S.A.,
`343 F.3d 311 (5th Cir. 2003) .......................................................................passim
`
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`Case: 23-20350 Document: 30 Page: 9 Date Filed: 08/14/2023
`
`
`
`Page
`
`
`In re Int’l Sys. & Controls Corp. Sec. Litig.,
`693 F.2d 1235 (5th Cir. 1982) ...................................................................... 29, 30
`In re Itron, Inc.,
`883 F.3d 553 (5th Cir. 2018) .......................................................................passim
`In re Ivantis, Inc.,
`835 F. App’x 560 (Fed. Cir. 2020) ..................................................................... 33
`In re King’s Daughters Health Sys.,
`31 F.4th 520 (6th Cir. 2022) ............................................................................... 32
`In re Lloyd’s Register N. Am., Inc.,
`780 F.3d 283 (5th Cir. 2015) ................................................................................ 4
`In re Moore,
`955 F.3d 384 (4th Cir. 2020) .............................................................................. 33
`In re Occidental Petroleum Corp.,
`217 F.3d 293 (5th Cir. 2000) .............................................................. 4, 16, 32, 33
`J. H. Cohn & Co. v. Am. Appraisal Assocs., Inc.,
`628 F.2d 994 (7th Cir. 1980) .............................................................................. 21
`Nguyen v. Excel Corp.,
`197 F.3d 200 (5th Cir. 1999) .............................................................................. 24
`United States v. Bilzerian,
`926 F.2d 1285 (2d Cir. 1991) ............................................................................. 33
`United States v. Helmsley,
`864 F.2d 266 (2d Cir. 1988) ............................................................................... 34
`Veillon v. Expl. Servs., Inc.,
`876 F.2d 1197 (5th Cir. 1989) ............................................................................ 22
`Willy v. Admin. Review Bd.,
`423 F.3d 483 (5th Cir. 2005) .............................................................................. 33
`
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`Case: 23-20350 Document: 30 Page: 10 Date Filed: 08/14/2023
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`
`
`
`STATUTES, RULES AND REGULATIONS
`28 U.S.C.
`§1292(b) .............................................................................................................. 15
`Federal Rule of Evidence
`Rule 502(a) ........................................................................................ 14, 23, 24, 27
`
`Page
`
`
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`Case: 23-20350 Document: 30 Page: 11 Date Filed: 08/14/2023
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`
`
`I.
`
`PRELIMINARY STATEMENT
`The “‘drastic and extraordinary’ remedy” of mandamus is to be “‘reserved for
`
`really extraordinary causes.’” Cheney v. United States Dist. Ct., 542 U.S. 367, 380
`
`(2004). What it is not to be used for is to disturb a district court’s fact-bound, and
`
`ultimately discretionary, findings—especially ones like the court noted here, in what
`
`is nothing more than a “garden-variety privilege dispute.” MR588.
`
`Defendants injected into that garden-variety dispute a series of tactical
`
`maneuvers that led the district court to correctly rule that they had waived both
`
`attorney-client and work-product privileges that formerly attached to an internal
`
`investigation’s details and findings.
`
`For instance, they held a lengthy PowerPoint presentation on the
`
`investigation’s specifics with the U.S. Securities and Exchange Commission
`
`(“SEC”). MR309. That four-and-a-half-hour presentation spanned some 250 pages,
`
`included a Q&A session along with information from 55 witness interviews—and
`
`was plainly marked “Attorney-Client Communication and Attorney Work Product.”
`
`Id.
`
`In addition, Defendants selectively disclosed privileged information to other
`
`third parties. For instance, the day before the SEC PowerPoint session, Defendants
`
`previewed that same presentation for Anadarko’s independent auditor KPMG—
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`
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`granting it full access to the presentation materials, and engaging in an unscripted
`
`Q&A session. MR309. (Tellingly, KPMG “wasn’t permitted to retain a copy”
`
`(id.)—which denial KPMG later noted reflected attorney-client privilege concerns.
`
`MR101.) Similarly, in connection with a planned equity offering, Anadarko’s
`
`general counsel held a call with lead underwriter J.P. Morgan in which they
`
`discussed “in detail” the investigation’s status and the investigating law firm’s
`
`preliminary “findings.” MR070.
`
`Defendants’ self-serving use of the investigation did not end there. When the
`
`SEC later issued its Termination Letter declining to bring an enforcement action
`
`against Anadarko, Defendants tried to use that same Letter in depositions to
`
`undermine the Class Representatives’ views of the litigation. They later admitted in
`
`open court, twice, that they would use the Letter again at trial. MR402:7-12; see
`
`also MR415:1-3.
`
`In light of the foregoing, the district court found that “[t]he record establishes
`
`that a significant portion of confidential communications between Norton Rose and
`
`Anadarko was apparently revealed to the SEC, KPMG, and JP Morgan.” MR316.
`
`At the same time, the court took into “consideration … Anadarko’s use of privilege
`
`as a sword and a shield.” Id. Given those findings, “[f]airness thus dictates that
`
`waiver extend to the entire subject matter of the AAC investigation.” Id.
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`
`
`The district court’s findings and resulting production Order are fully
`
`supported by the record. Defendants have failed to show that their right to a writ’s
`
`issuance is “‘“clear and indisputable”’” and “appropriate under the circumstances.”
`
`Cheney, 542 U.S. at 381. This Court should deny their Petition.
`
`II. COUNTERSTATEMENT OF ISSUE PRESENTED
`1. Whether this Court should grant extraordinary mandamus relief from
`
`the district court’s discretionary decision to compel production of documents that:
`
`(i) were used to secure a favorable SEC decision that Defendants then wielded
`
`affirmatively in litigation; and (ii) whose subject matter is inextricably intertwined
`
`with materials that Defendants voluntarily disclosed to several other third parties
`
`(including outside auditors whose clean audit opinion relied upon that subject matter
`
`and those materials)?
`
`III. APPLICABLE STANDARDS OF REVIEW
`A. Mandamus Generally
`Mandamus is “a ‘drastic and extraordinary’ remedy ‘reserved for really
`
`extraordinary causes.’” Cheney, 542 U.S. at 380.1 Courts undertake a three-pronged
`
`inquiry when deciding whether to take the extraordinary step of issuing a writ;
`
`
`1 Throughout this Opposition emphasis is added and internal citations omitted,
`unless otherwise noted.
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`
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`petitioners must show: (i) that they have “‘no other adequate means to attain the
`
`relief’” they desire; (ii) that their right to the writ is “‘“clear and indisputable”’”;
`
`and (iii) even if (i) and (ii) are deemed satisfied, that “the issuing court, in the
`
`exercise of its discretion, [is] satisfied that the writ is appropriate under the
`
`circumstances.” Id. at 380-81.
`
`“Review of a district court’s determination with respect to the attorney-client
`
`privilege, even on direct appeal, let alone via a mandamus petition, is limited.” In
`
`re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003). Notably, a district court’s
`
`“reversible error by itself is not enough to obtain mandamus.” In re Lloyd’s Register
`
`N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015); see also In re Occidental Petroleum
`
`Corp., 217 F.3d 293, 295 (5th Cir. 2000) (a petitioner “must show not only that the
`
`district court erred, but that it clearly and indisputably erred”) (Court’s emphasis).
`
`The District Court’s Wide-Ranging Discretion
`B.
`“‘A district court has broad discretion in all discovery matters, and such
`
`discretion will not be disturbed ordinarily unless there are unusual circumstances
`
`showing a clear abuse.’” Crain v. City of Selma, 952 F.3d 634, 638-39 (5th Cir.
`
`2020); see also Harte v. Bd. of Comm’rs of the Cnty. of Johnson, 940 F.3d 498, 522
`
`(10th Cir. 2019) (district court’s determination of attorney-client and work-product
`
`privilege operates within the abuse-of-discretion standard).
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`
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`In order to find an abuse of discretion, this Court must conclude that the
`
`district court’s Order: “‘(1) relie[d] on clearly erroneous factual findings; (2) relie[d]
`
`on erroneous conclusions of law; or (3) misapplie[d] the law to the facts.’” Allen v.
`
`C & H Distribs., L.L.C., 813 F.3d 566, 572 (5th Cir. 2015); see also Crain, 952 F.3d
`
`at 638 (factual findings reviewed for clear error, while legal conclusions are
`
`reviewed de novo).
`
`That the district court abused its discretion is a conclusion that is never easily
`
`reached, for “deference ... is the hallmark of abuse-of-discretion review.” Gen. Elec.
`
`Co. v. Joiner, 522 U.S. 136, 143 (1997).
`
`IV. STATEMENT OF THE CASE
`Factual Background
`A.
`A whistleblower’s complaint spurs Anadarko board
`1.
`action, a law firm’s internal investigation, and
`selective disclosure of the investigation’s procedures
`and results to third parties.
`In May 2016, Anadarko’s senior staff reservoir engineer and Shenandoah
`
`subsurface lead, Lea Frye, submitted a whistleblower complaint to the SEC alleging
`
`that Anadarko was overstating to investors the size and value of Shenandoah.
`
`MR355-56. In response, the Anadarko Audit Committee (“ACC”) hired law firm
`
`Norton Rose Fulbright US LLP (“Norton Rose,” or “NRF”) to investigate the
`
`allegations. MR356.
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`
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`Norton Rose stayed in contact with the SEC throughout 2016, providing the
`
`federal agency with select documents and revealing details about its investigation.
`
`Id. Norton Rose also provided detailed information about the investigation to
`
`Anadarko outside auditor KPMG on a dozen conference calls, including information
`
`about witness interviews and internal documents. Id. And, in connection with a
`
`planned equity offering, Anadarko’s general counsel held a September 8, 2016
`
`conference call with lead underwriter J.P. Morgan in which they discussed “in
`
`detail” the investigation’s status and Norton Rose’s preliminary “findings.” MR070.
`
`On November 21, 2016, Norton Rose actually previewed for KPMG the
`
`materials they intended to present to the SEC the following day. Id.; see also MR097
`
`(KPMG workpapers note that “prior to the November 22, 2016 meeting with the
`
`SEC, [Norton Rose will] present their findings to the Audit Committee/Board and
`
`KPMG”). KPMG was granted “full access” to the presentation, including a Q&A
`
`session with Norton Rose “[a]fter reading through the presentation”—but Norton
`
`Rose did not allow KPMG to keep a copy due to attorney-client privilege concerns.
`
`MR070-71; MR101.
`
`On November 22, 2016, Norton Rose gave a lengthy PowerPoint presentation
`
`to the SEC. The presentation spanned 250 pages, lasted more than 4.5 hours, and—
`
`like KPMG’s session the day before—included an unscripted Q&A session.
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`
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`MR356. Norton Rose revealed detailed information about the investigation,
`
`including its review of 300,000 documents and interviews of 28 Anadarko
`
`employees. Id. The presentation was marked “Attorney-Client Communication and
`
`Attorney Work Product.” MR309.
`
`The law firm’s overtures to the agency worked. On January 10, 2017, the
`
`SEC sent Norton Rose the “Termination Letter” ending its investigation of Anadarko
`
`without an enforcement action, “[b]ased on the information we have as of this date.”
`
`MR071.
`
`2.
`
`Defendants’ strategic use of the Termination Letter
`and Norton Rose’s investigation even as they refused
`to turn over waived materials.
`At subsequent depositions in the underlying securities-fraud matter,
`
`Defendants’ counsel deliberately wielded the Termination Letter while cross-
`
`examining Class Representatives in order to make them question their views of the
`
`litigation’s merits. They asked one representative, “[d]oes [the Termination Letter]
`
`change your view as to any of the allegations in Iron Workers’ complaint[?]”
`
`MR356. Showing it to another representative, they inquired, “[d]o you understand
`
`this letter to be an indication that the SEC has upheld the whistleblower claims
`
`against Anadarko?” MR356-57.
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`
`
`Beyond the class-representative depositions, Defendants continued to rely
`
`upon the ACC investigation and its related work product to erect defenses in their
`
`favor.
`
`For instance, Defendants’ interrogatory responses confirmed their intention to
`
`assert an affirmative defense—good-faith reliance on KPMG’s work and advice—
`
`even as the auditor’s workpapers, in turn, made clear that its 3Q2016 review and
`
`2016 year-end audit opinion blessing Anadarko’s Shenandoah’s accounting relied
`
`heavily on the selective information and analysis Norton Rose provided regarding
`
`the Audit Committee investigation. MR357.
`
`Similarly, when moving for summary judgment in early 2023, Defendants
`
`submitted an expert report both: (i) based on KPMG’s audit opinion; and (ii) relying
`
`on Norton Rose’s presentation to the SEC. MR357-58.
`
`Despite the foregoing, Plaintiff was forced to move to compel 500-plus
`
`documents concerning the ACC investigation that were withheld outright or redacted
`
`on work-product grounds—including certain KPMG workpapers—as well as 36
`
`documents by non-party Audit Committee members that were being withheld or
`
`redacted as attorney-client privileged. MR357.
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`Case: 23-20350 Document: 30 Page: 19 Date Filed: 08/14/2023
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`
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`3.
`
`Defendants concede at oral argument that they will
`use the Termination Letter as a sword based upon
`Norton Rose’s investigation and presentation, while
`Plaintiff informs the court that a Norton Rose
`attorney’s declaration is demonstrably inaccurate.
`At the hearing on Plaintiff’s motion-to-compel, Defendants’ counsel
`
`conceded, twice, that Defendants would wield the SEC’s Termination Letter at trial
`
`to counter any probative effect of whistleblower Frye’s initial letter to the SEC:
`
`I’m sure Plaintiffs will file a motion in limine about whether we can or
`cannot reference the SEC termination letter. As you can obviously
`imagine our position is that if they’re going to reference that Ms. Frye
`filed a letter with the SEC, in fairness we ought to be able to say that
`the SEC declined to press charges.
`MR402:7-12; see also MR415:1-3 (“[I]f they’re going to say Ms. Frye went to the
`
`SEC, we need to be able to explain to the jury that well the SEC didn’t actually bring
`
`charges.”).
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`In addition, Plaintiff pointed out that a declaration by Norton Rose’s lead
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`attorney dealing with the SEC incorrectly declared that no privileged materials had
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`been provided to the agency. MR385:17-MR386:1. That same declaration further
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`incorrectly declared that there were no summaries of witness interviews given to the
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`SEC—when in fact there were witness summaries provided. MR389:5-23.
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`The errors mattered, explained Plaintiff, for while the PowerPoint slides may
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`have tabulated some of what was conveyed to the SEC in securing a termination
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`letter, logically the entirety of that conveyance was not: “We both know that
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`PowerPoint presentations are geared talking points…. They’re not entirely what was
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`told to the SEC ….” MR389:24-MR390:3; see also MR390:7-9 (“It sort of defies
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`probability that Norton Rose said nothing [to the SEC] about what was said during
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`these interviews.”). Indeed, it was obvious that not every interviewee supported
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`Anadarko’s story. See, e.g., MR122 (“[w]itnesses … largely agreed” with
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`Anadarko-friendly point); MR123 (“interviewees generally agreed” with point in
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`Anadarko’s favor). Given that conspicuous equivocating, what other interviewees
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`said about Shenandoah—the ones that didn’t agree—also warranted disclosure. See,
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`e.g., MR413:5-8 (“fairness requires that if they’re going to inject [the SEC
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`Termination Letter] into the litigation, which they have offensively, that we need the
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`full panoply of information that went into” that decision); MR361 (“Defendants
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`refused to provide Plaintiffs with the facts and opinions that NRF reached as part of
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`the AAC investigation, but chose not to share with the SEC”) (emphasis in original).
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`The district court agreed with that assessment of missing information, both at
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`the hearing and later in its Order compelling production. See, e.g., MR409:25-
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`MR410:3 (“I mean, if I was that witness” being presented with SEC’s Termination
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`Letter, “I’d be sort of like—I’d want to know everything that went into that
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`investigation”); MR406:23-24 (“But [Plaintiff’s] point is you did an investigation
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`and then were spoon feeding material to the SEC to get that result.”); see also
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`MR314 (court notes “Anadarko … wants to shield the underlying information that
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`went into the decision by the SEC—or that potentially was withheld from it”).
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`B.
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`The district court issues its Order finding waiver and
`compelling document production, along with its follow-on
`denial of reconsideration.
`1. Order finding waiver and compelling production.
`Following briefing and oral argument on the issues, the district court granted
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`Plaintiff’s motion to compel. See MR311 (“Anadarko has used privilege as both a
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`sword and a shield, thus likely waiving privilege as to the entire subject matter of
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`the ACC investigation.”). Several of the court’s rationales and findings undergirding
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`that holding warrant mention.
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`As a preliminary matter, the district court found it “pertinent” that Norton
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`Rose had shared the underlying investigation materials with several third parties in
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`addition to the SEC: i.e., (i) the “full access” preview granted KPMG that included
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`actual materials, a Q&A session, and a dozen conference calls; (ii) the “detail[ed]”
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`conference call with J.P. Morgan’s counsel that covered the investigation’s status
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`and “‘NRF’s preliminary “findings”’”; and (iii) the lengthy, 250-page PowerPoint
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`presentation to the SEC that was marked “Attorney-Client Communication and
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`Attorney Work Product,” while lasting more than 4.5 hours and including an
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`unscripted Q&A session. MR309. The resulting documents at issue—some
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`produced with redactions, while others withheld entirely—numbered over 500. Id.
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`After noting its “‘broad discretion’” in deciding whether to compel the
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`documents’ production (MR311), the district court analyzed their waiver generally,
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`as well as that waiver’s scope.
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`Waiver of privileges generally. “Important here,” observed the district court,
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`“is the concept of waiver of privilege due to use of privileged information as both a
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`sword and a shield.” MR312 (court’s emphasis). In other words, when a privilege-
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`holder uses confidential information against his adversary, he implicitly waives its
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`use “protectively (the shield).” Id. Moreover, where the privilege-holder seeks to
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`use some protected material as evidence but asserts privilege as to other, related
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`materials, “the party ‘thereby waives the privilege as to all related privileged matters
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`on the same subject.’” MR313.
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`The key, said the district court, is deciding just “what is it that puts a matter
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`in issue for such purposes?” Id. (court’s emphasis). The answer, noted the court, is
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`provided by this Court’s decision in In re Itron, Inc., 883 F.3d 553 (5th Cir. 2018):
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`a party injects the privileged communication’s contents into litigation “‘either by
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`making the content of the communications a factual basis of a claim or defense or
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`by disclosing the communication itself.’” MR313. Some examples of that injection
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`included “advice of counsel,” and “employer reliance on investigation.” Id. (court’s
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`emphasis) (citing Doe 1 v. Baylor Univ., 335 F.R.D. 476, 498 (W.D. Tex. 2020)).2
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`Both were present here. MR314. The district court found that Anadarko
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`“seeks to rely on the SEC’s termination letter” to indicate that whistleblower Frye’s
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`allegations “were unfounded or false,” because the investigation’s results presented
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`to the agency “resulted in it choosing not to pursue and enforcement action.” Id.
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`(court’s emphasis). But at “the same time,” Anadarko “wants to shield the
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`underlying information” that went into the SEC’s decision—“or that potentially was
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`withheld from it.” Id.
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`That gambit was wrong, held the district court. “Anadarko can’t separate the
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`result of the SEC investigation from the facts and representations by attorneys that
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`went into that investigation.” Id. (court’s emphasis). The court further found that
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`2
`In Baylor, the university hired an outside law firm to conduct an independent
`investigation of Baylor’s “institutional responses” to various Title IX and related
`compliance issues—with the law firm making remedial recommendations to the
`school’s Board of Regents. MR314. The university sought in subsequent litigation
`to demonstrate that it had responded properly to the issues by pointing to actions it
`had taken—while simultaneously asserting privilege to shield its lawyers’ advice on
`the subject. Id. That conduct amounted to waiver, held the Baylor court, as Baylor
`wanted to “‘dramatically restrict’” fact discovery by “‘restricting discovery of [its
`law firm’s] work,’” while at the same time “‘want[ing] to get the benefit of relying
`on the investigation and reforms.’” Id. Given that particular fact pattern echoing
`the situation here, it is little wonder the district court here found Baylor “instructive”
`in assessing Anadarko’s conduct. Id. (“So, too, here.”).
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`the lack of separation “naturally extends to and encompasses—in terms of both
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`fairness and completeness—what Anadarko chose not to present to the SEC.” Id.
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`(court’s emphasis); see