IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN RE OXBOW CARBON LLC ) Consol. C.A. No. 12447-VCL
UNITHOLDER LITIGATION )
MEMORANDUM OPINION
Date Submitted: March 23, 2017
Date Decided: March 30, 2017
Kenneth J. Nachbar, Thomas W. Briggs, Jr., Richard Li, MORRIS, NICHOLS, ARSHT &
TUNNELL LLP, Wilmington, Delaware; R. Robert Popeo, Michael S. Gardener, Breton
Leone-Quick, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C., Boston,
Massachusetts; Attorneys for Oxbow Carbon LLC.
Stephen B. Brauerman, Sara E. Bussiere, BAYARD, P.A., Wilmington, Delaware; Special
Conflicts Counsel for Oxbow Carbon LLC.
Stephen C. Norman, Jaclyn C. Levy, Daniyal M. Iqbal, POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware; David B. Hennes, C. Thomas Brown, Daniel J.
Chirlin, ROPES & GRAY LLP, New York, New York; Attorneys for Oxbow Carbon &
Minerals Holdings, Inc., Ingraham Investments LLC, Oxbow Carbon Investment Company
LLC, and William I. Koch.
Patricia R. Urban, PINCKNEY, WEIDINGER, URBAN & JOYCE LLC, Greenville,
Delaware; Special Conflicts Counsel for Oxbow Carbon LLC, Oxbow Carbon & Minerals
Holdings, Inc., Ingraham Investments LLC, Oxbow Carbon Investment Company LLC, and
William I. Koch.
Kevin G. Abrams, Michael A. Barlow, J. Peter Shindel, Jr., Daniel R. Ciarrocki, April M.
Ferraro, ABRAMS & BAYLISS LLP, Wilmington, Delaware; Brock E. Czeschin,
Matthew D. Perri, Sarah A. Galetta, RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware; Michael B. Carlinsky, Jennifer J. Barrett, Chad Johnson, Sylvia
Simson, Silpa Maruri, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New
York, New York; Attorneys for Crestview-Oxbow Acquisition, LLC, Crestview-Oxbow
(ERISA) Acquisition, LLC, Crestview Partners, L.P., Crestview Partners GP, L.P.,
Crestview Advisors, LLC, Robert J. Hurst, and Barry S. Volpert.
Evan O. Williford, Andrew J. Huber, THE WILLIFORD FIRM LLC, Wilmington,
Delaware; Special Conflicts Counsel for Crestview-Oxbow Acquisition, LLC, Crestview-
Oxbow (ERISA) Acquisition, LLC, Crestview Partners, L.P., Crestview Partners GP, L.P.,
Crestview Advisors, LLC, Robert J. Hurst, and Barry S. Volpert.
J. Clayton Athey, John G. Day, PRICKETT, JONES & ELLIOTT, P.A., Wilmington,
Delaware; Dale C. Christensen, Jr., Michael B. Weitman, SEWARD & KISSEL LLP, New
York, New York; Attorneys for Defendant and Counterclaim-Plaintiff Load Line Capital,
LLC.
David C. McBride, Kathaleen St. J. McCormick, Elisabeth S. Bradley, Meryem Y. Dede,
YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Rusty
Hardin, Ryan Higgins, Jeremy Monthy, RUSTY HARDIN & ASSOCIATES, LLP,
Houston, Texas; Attorneys for Defendant Eric P. Johnson.
David C. McBride, Kathaleen St. J. McCormick, Elisabeth S. Bradley, Meryem Y. Dede,
YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Michael
P. Angelini, Joshua A. Lewin, Lynette Paczkowski, David Travers, BOWDITCH &
DEWEY, Boston, Massachusetts; Attorneys for Defendant Christina Wing O’Donnell.
LASTER, Vice Chancellor.
William I. Koch and three of his affiliates have filed a “request for clarification”
regarding three orders that this court entered on March 7, 2017. The request “amounts to a
motion for reargument under Rule 59(f).” Energy P’rs, Ltd. v. Stone Energy Corp., 2006
WL 2947483, at *5 (Del. Ch. Oct. 11, 2006).
“A motion for clarification may be granted where the Court’s ruling is unclear, and
such a motion is treated[] procedurally as a motion for reargument under Court of Chancery
Rule 59(f).” Gore v. Al Jazeera Am. Hldgs. I, Inc., 2015 WL 721068, at *1 n.1 (Del. Ch.
Feb. 19, 2015)). A motion for reargument will be granted only if the court “overlooked a
decision or principle of law that would have a controlling effect” or the court
“misapprehended the law or the facts so that the outcome of the decision would be
affected.” In re OM Gp., Inc. S’holders Litig., 2016 WL 7338590, at *2 (Del. Ch. Dec. 16,
2016) (quotation omitted). Under these standards, the motion for clarification is denied.
I. COMMUNICATIONS INVOLVING O’DONNELL
In an order that granted a motion to compel filed by Christina O’Donnell (the
“O’Donnell Order”), the court directed Oxbow Carbon LLC (“Oxbow” or the “Company”)
to produce to O’Donnell “any communications to which O’Donnell was a party.”
O’Donnell Order ¶ 3. The Company seeks clarification that it need only produce the
communications to O’Donnell and not to any other parties.
The O’Donnell Order held that privilege could not be asserted for the
communications because the required element of confidentiality was lacking. See D.R.E.
502(b). The O’Donnell Order held in the alternative that the Company had waived privilege
for the communications by placing O’Donnell’s conduct at issue. See Sokol Hldgs., Inc. v.
1
Dorsey & Whitney, LLP, 2009 WL 2501542, at *6 (Del. Ch. Aug. 5, 2009). Once the
Company waived privilege, it lost its ability to withhold the communications on that basis.
See In re G-I Hldgs. Inc., 218 F.R.D. 428, 432 (D.N.J. 2003); Navajo Nation v. Peabody
Holding Co., 255 F.R.D. 37, 44 (D.D.C. 2009). The O’Donnell Order instructed the
Company to produce the communications to O’Donnell because she was the party who
sought them. If other parties have requested them, the Company must produce them to
those parties as well.
The Company’s two cases do not support a different result. The Kent County
decision states that an “at issue” waiver applies only to the subject matter placed at issue;
it does not address who can obtain the communications for which privilege was waived.
See In re Kent Cty Adequate Pub. Facilities Ordinances Litig., 2008 WL 1851790 (Del.
Ch. Apr. 18, 2008). The Saito case dealt with whether production to a government agency
pursuant to a confidentiality agreement resulted in a waiver of the work product doctrine
in civil litigation; the court held that it did not. See Saito v. McKesson HBOC, Inc., 2002
WL 31657622 (Del. Ch. Oct. 25, 2002). The decision recognized that “there may be
problems inherent in treating different private plaintiffs differently.” Id. at *10. The Saito
case thus involved a materially different scenario and signaled that the same rule would
not apply for parties to the same litigation.
There is no need to clarify or reconsider this aspect of the O’Donnell Order. The
documents are not privileged and cannot be withheld on that basis.
2
II. DOCUMENTS FROM KOCH AND HIS OTHER AFFILIATES
In addition to addressing the Company’s documents, the O’Donnell Order ruled that
William I. Koch, Oxbow Carbon & Minerals Holdings, Inc. (“Koch Holdings”), and
Ingraham Investments, LLC and Oxbow Carbon Investment Company LLC (jointly with
Ingraham, the “Small Holders”) had to produce documents to O’Donnell. These parties
argue that the production obligation should not extend beyond the Company, and if it does,
it only should require production to O’Donnell.
The court did not misapprehend any issue of fact or law in directing Koch and his
affiliates, defined in the O’Donnell Order as the Koch Parties, to produce documents to
O’Donnell. Koch controls each of the entities, and he is causing each of them to participate
in this litigation. Through coordinated allegations and arguments, the Koch Parties placed
communications at issue by alleging a wide-reaching conspiracy involving O’Donnell. The
court also has taken into account indications that the Koch Parties have been using
improper and overly broad assertions of privilege to obstruct discovery.
For the same reasons discussed in the preceding section, the Koch Parties shall
produce the documents to all parties that sought them. The O’Donnell Order focused on
O’Donnell because she filed the motion. Once privilege was waived, the communications
were no longer privileged. They cannot be withheld on that basis from any party that
requested them.
3
III. DOCUMENTS ON THE PRIVILEGE LOG FOR WHICH NO ATTORNEY
WAS LISTED
In an order that granted a motion to compel filed by affiliates of Crestview Partners
(the “Crestview Order”), the court directed the Company to “produce the items on its
privilege log for which no attorney is identified.” Crestview Order ¶ 8. This ruling was
clear and unambiguous.
The Company now seeks to argue that if one dug into the documents that
corresponded to the entries on the log, then one might discern that an attorney was
involved. That is particularly true, the Company says, for documents produced in redacted
form.
The Koch Parties previously made this argument. The court considered and rejected
it, both in light of the clear requirements for a privilege log and because the Koch Parties
have taken numerous discovery-obstructing stances, such that they are not in a position to
receive the benefit of the doubt. The Koch Parties were on notice about the absence of
attorneys on their log and could have corrected this defect. They are not entitled to a “do-
over” now, after briefing and after the court has ruled. See Klig v. Deloiite, 2010 WL
3489735, at *3 (Del. Ch. Sept. 7, 2010).
IV. PRODUCTION OF OTHER DOCUMENTS
The Koch Parties ask the court to rule generally that any documents that were
ordered produced in response to a motion to compel need only be produced to the party
that sought the documents and not to any other party. O’Donnell and Johnson report that
4
the Koch Parties have sought to restrict parties to whom they have produced documents
from sharing those documents with other parties.
This is an issue that needs to be resolved promptly. It is not, however, an issue that
the court addressed in any of the previous orders. The current motion for clarification is
therefore not the appropriate vehicle for addressing it. If the parties cannot reach agreement
on how to handle this matter, then they should agree on a method for presenting the issue
to the court for decision.
V. CONCLUSION
The motion for clarification is denied. The Koch Parties will comply with the orders
that this court has entered.
5