Judge Blocks Dow Chemical From Shielding Termination File With Privilege

BEAUMONT, Texas (LN) — U.S. District Judge Marcia A. Crone granted a motion to compel on Tuesday, ruling that Dow Chemical must produce its internal termination review file and data sheets relevant to an age-discrimination suit brought by a former employee with nearly 30 years of service.

Oubre, 57, sued Dow under the Texas Commission on Human Rights Act after the company terminated her in early 2025. She alleged the company’s stated reasons for her firing were pretextual and that her constructive discharge was motivated by her age.

Dow had cited a "Last Chance Letter" from November 2024, which accused Oubre of failing to calibrate instruments and editing logbooks, resulting in a $3,000 loss. The company also cited a failure to perform an Analytical Work Request test.

Oubre’s motion to compel sought two categories of documents: OCS Black Specs Results data sheets with photos for the Log-In Group for October 2 and 3, 2024, and the Employment Review Meeting (ERM) file—a PowerPoint presentation used by her supervisor to justify her termination.

Dow opposed production of the ERM file, arguing it was protected by attorney-client privilege because it was prepared for legal advice regarding her employment.

Crone rejected that argument, finding the primary purpose of the file was business-related rather than legal.

"It cannot be concluded that the creation of the File was 'for the primary purpose of securing either a legal opinion or legal services,'" Crone wrote.

The judge noted that while HR Legal was present, the file was created to communicate reasons for termination to a decision-making team, not solely to secure legal advice.

"The fact that the PowerPoint may have been sent to HR Legal also does not render the ERM File privileged," Crone wrote, citing precedent that inclusion of an attorney does not automatically invoke the privilege.

Crone also ordered Dow to produce the OCS Black Specs data sheets, finding them relevant to Oubre’s claim of disparate treatment.

"Evidence that another group failed to run certain tests on the same night Oubre was accused of not running the MI tests could be probative of disparate treatment and pretext," the judge wrote.

Dow must produce the documents by June 27, 2026. The parties have until June 10, 2026, to file supplemental briefing regarding the evidence, as both sides have already filed motions for summary judgment.

Oubre began working at Dow’s Sabine River plant in Orange, Texas, in May 1995. She was annually among the highest wage earners due to her seniority and was frequently assigned to train new Analytical Technicians.