ORDER

VICKI MILES-LaGRANGE, District Judge.

Before the Court is plaintiffs' Motion to Compel Production of Documents, filed December 8, 2017. On December 22, 2017, defendant filed its response, and on December 29, 2017, plaintiffs filed their reply. Based upon the parties' submissions, the Court makes its determination.

Plaintiffs move this Court to enter an order finding that defendant erred and misapplied the attorney-client privilege and work product doctrine for all documents on its initial Rule 26 privilege log ("First Log") and compelling defendant to produce all of those documents on the First Log, with the exception of those documents for which it asserts attorney-client privilege and the only authors and recipients identified are Halliburton employees and a Halliburton in-house or retained counsel. Plaintiffs assert that within the First Log, defendant asserted attorney-client protection for 1,022 documents of which less than 20 involve communications solely between defendant and its counsel. Plaintiffs further assert that defendant asserts either attorney-client or work product protection for hundreds of documents that its independent contractor, SAIC Energy, Environmental & Infrastructure, LLC, formerly known as The Benham Companies, LLC (collectively "SAIC"), drafted and received internally. Plaintiffs contend that defendant has incorrectly utilized Rule 26 to protect documents that SAIC drafted or possessed and that these documents pertain to defendant's efforts to address its contamination of the local aquifer, i.e., work done in the ordinary course of business. Plaintiffs also contend that defendant's regulatory compliance with Oklahoma law and its subsequent compliance with its Consent Order agreement with the Oklahoma Department of Environmental Quality ("ODEQ")1 are regulatory, business requirements unrelated to litigation. Plaintiffs further contend that these documents do not reflect defendant's counsel's legal strategies and defendant did not cause them to be drafted in anticipation of litigation.

Defendant asserts that the challenged documents are protected by the work product doctrine and/or the attorney-client privilege. Defendant states that after it discovered the potential for offsite perchlorate contamination, the site investigation became the responsibility of defendant's counsel, who advised defendant in connection with adversarial regulatory proceedings with the ODEQ and in anticipation of third-party litigation. Defendant asserts that the documents at issue on the First Log were prepared by or sent to SAIC, an environmental consulting firm that was assisting counsel in advising defendant how to deal with ODEQ in these proceedings, and that decisions about how defendant should proceed in its dealings with ODEQ have been made with the guidance and advice of defendant's in-house and outside counsel since May 2011. Defendant, therefore, contends that documents generated by defendant's environmental consultants, including SAIC, relating to work performed at the direction of counsel in connection with the defense of the ODEQ regulatory proceeding under the Consent Order are clearly work product and privileged.2 Further, defendant contends that this Court should exercise its discretion and deny plaintiffs' motion because they unreasonably and without justification waited until after the close of discovery to file their motion.3

Having carefully reviewed the parties' submissions, the Court, in its discretion, finds that it is appropriate to consider plaintiffs' motion to compel ever though said motion was filed after the discovery deadline. The Court finds that the issues raised in plaintiffs' motion are significant and plaintiffs' motion is not so untimely as to warrant denying the motion on the basis of untimeliness. Additionally, the Court finds that the most prudent approach to addressing plaintiffs' motion to compel would be to globally address defendant's claims of work product protection and attorney-client privilege, as no specific documents have been submitted to this Court for in camera review. If after receiving the instant order the parties are unable to agree as to the production of certain documents set forth on the First Log, the parties shall notify the Court and submit the disputed documents for an in camera review.

I. Defendant's claims of work product protection

In a case based on diversity, such as the instant case, federal law governs claims of work product protection. See Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998). The work product doctrine originated in the United States Supreme Court case, Hickman v. Taylor, 329 U.S. 495 (1947). In 1970, the Supreme Court adopted Federal Rule of Civil Procedure 26(b)(3), thereby codifying the work product doctrine. Rule 26(b)(3) provides, in pertinent part:

Fed. R. Civ. P. 26(b)(3).

Okla. v. Tyson Foods, Inc., 262 F.R.D. 617, 625 (N.D. Okla. 2009). Further, "[l]ike all privileges, the work product doctrine must be strictly construed." Pac. Gas and Elec. Co. v. United States, 69 Fed. Cl. 784, 790 (Fed. Cl. 2006) (internal quotations and citations omitted).

"The threshold determination in a case involving a claim of work product privilege is whether the material sought to be protected from discovery was prepared in anticipation of litigation or was prepared in the ordinary course of business or for other purposes." Id. (internal quotations and citation omitted). Thus, to determine if administrative proceedings implicate work product protection, they must involve "litigation." See Fru-Con Constr. Corp. v. Sacramento Mun. Util. Dist., Civ. No. S-05-0583 LKK GGH, 2006 WL 2050999, at *4 (E.D. Cal. July 20, 2006).

Pac. Gas, 69 Fed. Cl. at 792-93.

Having carefully reviewed the parties' submissions, the Court finds that defendant has not established that the documents at issue to which it has asserted work product protection — the SAIC documents — were prepared in anticipation of litigation. Specifically, the Court finds that defendant has not established that the ODEQ proceedings for which these documents were prepared are adversarial proceedings. The ODEQ proceedings consist of defendant submitting a self-disclosure letter, the negotiation and execution of a Consent Order between ODEQ and defendant to investigate and remediate potential environmental impacts from the site, and defendant's investigation and remediation of the site under the terms of the Consent Order. The Court finds these proceedings have none of the hallmarks of adversarial proceedings but are more in the nature of ex parte proceedings. Further, the Court finds defendant's contention that the ODEQ proceedings are adversarial because ODEQ has the ability to impose monetary sanctions and penalties and to enforce the Consent Order in a state district court in Oklahoma or in an administrative tribunal should defendant violate the Consent Order is too broad. Defendant's contention relies on the assumption that defendant knew that it would (or that it intended to) fail in its efforts under the Consent Order; that is, that it would ultimately be in violation of the terms of the Consent Order or some environmental act or policy, which would allow the ODEQ to pursue them. The Court finds the documents at issue were created to avoid litigation, not in anticipation of litigation.

Accordingly, the Court finds defendant's claims of work product protection as to the SAIC documents fail.

II. Defendant's claims of attorney-client privilege

In a case based on diversity, state law governs claims of attorney-client privilege. See Frontier Refining, Inc., 136 F.3d at 699. The attorney-client privilege protects "confidential communications [between the attorney and the client] made for the purpose of facilitating the rendition of professional legal services to the client." Okla. Stat. tit. 12, § 2502(B). "Under the common law, the privilege will only be recognized when the communication between the client and the attorney is made in confidence of the relationship and under circumstances from which it may reasonably be assumed that the communication will remain in confidence." United States v. Ary, 518 F.3d 775, 782 (10th Cir. 2008) (internal quotations and citations omitted). Confidentiality is "lost if the client discloses the substance of an otherwise privileged communication to a third party." Id. (internal quotations and citation omitted). Further, in order for the attorney-client privilege to apply, the party asserting the privilege must establish: (1) the existence of an attorneyclient relationship; (2) the confidential nature of the communication; and (3) that the communication was made for the purpose of seeking or providing legal advice. See Lindley v. Life Inv'rs Ins. Co. of Am., 267 F.R.D. 382, 388-89 (W.D. Okla. 2010). Finally, the attorney-client privilege "can also apply to communications between an environmental consultant and an attorney when the communication is made to assist the attorney in giving legal advice to the client." Ford Motor Co. v. Mich. Consol. Gas Co., Civil Action No. 08-CV-13503, 2012 WL 5435184, at *4 (E.D. Mich. Sept. 27, 2013) (internal citation omitted).

Having carefully reviewed the parties' submissions, the Court finds the attorney-client privilege would apply to any communications between defendant's counsel (whether in-house counsel or outside counsel) and SAIC, their environmental consultant, if the communication is made to assist counsel in giving legal advice to defendant and the confidential nature of the communication has been maintained. Defendant has submitted sufficient evidence, by way of the affidavits of its counsel attached to its response, that counsel retained SAIC to consult with and assist them in order to render advice to defendant. Whether the confidential nature of the communication has been maintained is a finding that must be made as to each specific document, which for purposes of this Order, the Court has not made.4

III. Conclusion

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART plaintiffs' Motion to Compel Production of Documents [docket no. 80] as follows:

Defendant shall produce any documents that are to be produced as a result of this Order by January 22, 2018.

IT IS SO ORDERED.