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Federal Energy Regulatory Commission v. J.P. Morgan Ventures Energy Corp.

United States District Court, District of Columbia

November 29, 2012

FEDERAL ENERGY REGULATORY COMMISSION, Petitioner,
v.
J.P. MORGAN VENTURES ENERGY CORPORATION, Respondent.

Page 6

Thomas P. Olson, Federal Energy Regulatory Commission, Washington, DC, for Petitioner.

Catherine M. Krupka, Sutherland Asbill & Brennan LLP, Michele A. Roberts, John III Estes, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, for Respondent.

Page 7

MEMORANDUM ORDER

DEBORAH A. ROBINSON, United States Magistrate Judge.

Petitioner in this subpoena enforcement action challenges Respondent's claim of attorney-client privilege with respect to 25 e-mails produced by Respondent in redacted form. See Petition by Federal Energy Regulatory Commission for an Order to Show Cause Why This Court Should Not Enforce Subpoenas for Production of Documents (Document No. 1). The court (Kollar-Kotelley, J.) ordered Respondent to show cause by a date certain why it should not be required to produce the e-mails in unredacted form, or to submit them for in camera review. Order to Show Cause (Document No. 2) at 1-2. Thereafter, this action was referred for all purposes, with the consent of the parties, to the undersigned United States Magistrate Judge. Referral to Magistrate Judge (Document No. 6); see also Order Referring Case to Magistrate Judge for All Purposes (Document No. 5).

Respondent filed an opposition to the petition, and, in addition, submitted the e-mails which are the subject of the petition to the chambers of the undersigned for in camera review. See Memorandum in Opposition to Petition of the Federal Energy Regulatory Commission Seeking an Order Compelling the Production of Privileged Documents by J.P. Morgan Ventures Energy Corporation (" Opposition" ) (Document No. 11). Petitioner timely filed a reply. See Reply of Federal Energy Regulatory Commission in Support of Petition for Order to Show Cause (" Reply" ) (Document No. 14).

On August 30, 2012, counsel for the parties appeared before the undersigned for a status conference and oral argument with respect to the scope of the privilege claimed by Respondent. Transcript of Proceedings (Document No. 18); 08/30/2012 Minute Entry; see also Joint Status Report Concerning Meet-and-Confer Process (Document No. 17).

The undersigned now has completed the in camera review of the redacted portions of the 25 e-mails at issue in this action. Upon consideration of the in camera submission in the context of the applicable authorities and the arguments of counsel, the undersigned finds that Respondent has demonstrated that the redactions are indeed shielded by the attorney-client privilege. Accordingly, Petitioner's request to compel production of the documents will be denied.

APPLICABLE STANDARDS

In the most recent articulation of the standards governing enforcement of an administrative subpoena, another judge of this court observed that

[a] court's role in a proceeding to enforce an administrative subpoena is a strictly limited one. An administrative subpoena must be enforced if the information sought is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.

United States v. ISS Marine Servs., Inc., No. 12-481, 905 F.Supp.2d 121, 126-27, 2012 WL 5873682, at *3 (D.D.C. Nov. 21, 2012) (citations and internal quotations omitted); see also FTC v. Boehringer Ingelheim, Pharm., Inc., 898 F.Supp.2d 171, 174, 2012 WL 4888473, at *2 (D.D.C.2012) (citing Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1517 (D.C.Cir.1993) for the proposition that " [t]he burden of proving undue hardship ‘ is not easily met where ... ...


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