QBE Insurance Corporation v. Griffin et al

Filing 50

MEMORANDUM OPINION AND ORDER that the Objections 44 are SUSTAINED in part and OVERRULED in part. The objections are sustained with respect to assertions of work-product and attorney-client privileges, and are overruled in all other respects. Accord ingly, the portion of Magistrate Judge Walker's Order directing production of documents covered by the attorney-client or work-product privileges is VACATED. This Opinion and Order has no effect on the balance of Magistrate Judge Walker's Order. The MOTION to Intervene 45 is DENIED as moot. Signed by Hon. Chief Judge Mark E. Fuller on 9/4/09. (Attachments: # 1 Civil Appeals Checklist)(br, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION Q B E INSURANCE CORPORATION, P l a i n t if f , v. WALTER GRIFFIN and MARY HOWARD, D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-949-MEF (W O )

M E M O R A N D U M OPINION AND ORDER IN T R O D U C T IO N P la in tif f QBE Insurance Corporation ("QBE") filed this declaratory judgment action a g a in s t Walter Griffin ("Griffin") and Mary Howard ("Howard") on December 3, 2008. (D o c . # 1.) QBE seeks a declaration that it has no duty to defend Griffin in an underlying s ta te court lawsuit brought by Howard. A law firm not involved in this declaratory judgment a c tio n , Haskell, Slaughter, and Gallion, represents Griffin in the state court proceedings.1 T h e Case is presently before the Court on a Rule 72(a) Objection to Chief Magistrate Judge W a lk e r' s Order granting Defendant Mary Howard's Third Motion to Compel. (Doc. # 44.) T h e Court has carefully considered the submissions of the parties and the applicable a u th o ritie s and has reviewed a recording of the hearing before the Magistrate Judge. For the

Haskell, Slaughter, and Gallion filed a Motion to Intervene in support of the Objections. (Doc. # 45). Because the Court sustains the objections with regard to the interests they seek to protect, the Motion to Intervene is due to be DENIED as moot. -1-

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rea so n s set forth below, the Court finds that the objections are due to be SUSTAINED in part a n d OVERRULED in part. FACTUAL AND PROCEDURAL BACKGROUND As Chief Magistrate Judge Walker observed during the hearing on the motion in issue, d isco v ery in this case has not proceeded smoothly. The latest incident is Howard's Third M o tio n to Compel Production of Documents. (Doc. # 37.) By that Motion, Howard sought a n order directing QBE to respond to a series of requests for production. The requests to w h ic h QBE objected, numbered 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, and 15, requested the f o l lo w in g documents: R e q u e s t No. 4: Any and all correspondence, documents, emails or writings of any k in d sent from you to the attorneys at Haskell, Slaughter and Gallion regarding their d e f e n s e of Walter Griffin in the Mary Howard case. Request No. 5: Any and all correspondence, documents, emails or writings of any k in d sent from you to Walter Griffin's attorneys at Haskell, Slaughter and Gallion f ro m 2006 to the present that are not included in your response to Request No. 4. R e q u e s t No. 7: Any and all correspondence, documents, emails or writings of any k in d reflecting that you exercised your enhanced obligation of good faith to your in s u re d , Walter Griffin. R eq u est No. 8: Any and all correspondence, documents, memorandums, emails, in te ro f f ic e emails, inter-office memorandums, or writings of any other kind reflecting th a t you and the attorneys at Haskell, Slaughter and Gallion understood that your in s u re d , Walter Griffin was the client in the Mary Howard case. R e q u e s t No. 9: Any and all correspondence, documents, emails or writings of any k in d sent from you to the attorneys at Haskell, Slaughter and Gallion regarding their re p re s e n ta tio n of Walter Griffin in the Mary Howard case. Request No. 10: Any and all documents, correspondence, memorandums, emails, in te ro f f ic e emails, inter-office memorandums or writings of any kind reflecting any -2-

c o n c ern s you had for your monetary interests in the Mary Howard case. R e q u e s t No. 11: Any and all documents, correspondence, memorandums, emails, in te ro f f ic e emails, inter-office memorandums or writings of any kind reflecting your c o n c ern , if any, for your insured's financial risk in the Mary Howard case. R e q u e s t No. 12: Any and all correspondence, documents, emails or writings of any k in d that reflect your understanding stated with specificity and in detail regarding the d u tie s and responsibilities of Walter Griffin as vice president or any other office of S o u th e a st Pallet and Box/Kopac. R e q u e s t No. 13: Any and all documents, correspondence, memorandums, emails, in te ro f f ic e emails, inter-office memorandums or writings of any kind either from you to your attorneys of [sic] from your attorney's [sic] to you, regarding Walter Griffin's p o te n tia l liability in the Mary Howard case. Request No. 14: Any and all correspondence, documents, emails or writings of any n a tu re and kind sent by you to your insured regarding any and all developments in yo u r investigation relevant to his policy coverage and the progress of his lawsuit. R e q u e s t No. 15: To the extent not already produced, any and all documents, c o rre sp o n d e n c e , email or any other writings you have received from Haskell, S lau g h ter and Gallion regarding the Mary Howard case to the present. H o w ard propounded these requests for production on February 27, 2009. However, at that time Howard had not filed her initial disclosures in violation of the Court's Uniform S c h e d u lin g Order and Federal Rule of Civil Procedure 16. On April 11, 2009, Howard sent Q B E a ten-day letter requesting responses to her discovery requests. QBE responded in a l e tte r dated April 22, 2009, claiming that the documents requested were immaterial and irre le v a n t and that it did not intend to engage in discovery until Howard filed her initial d is c lo s u re s . On May 27, 2009, Howard filed her initial disclosures. QBE began preparing its

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re sp o n s e s to Howard's first requests for production upon receipt of the initial disclosures and ten d e re d those responses on June 11, 2009. Part of the responses included objections to m a n y of the above-detailed requests. QBE objected that much of the material requested was irre le v a n t to the declaratory judgment action and was attorney work-product prepared by H a sk e ll, Slaughter and Gallion in the course of its representation of Griffin in the underlying s ta te case. In response to QBE's objections, Howard filed a Motion to Compel Production of D o c u m e n ts on July 6, 2009. (Doc. # 37.) Chief Magistrate Judge Walker held a hearing on t h e Motion on July 30, 2009. At the conclusion of the hearing, she granted the Motion b e c au s e she found that QBE waived its objections to the propounded requests for production b e c a u se it did not object within thirty days of service. While she did discuss the arguments m a d e in the Motion and QBE's Response, Magistrate Judge Walker did not orally recognize a t the hearing that many of the documents sought by Howard were attorney work-product. P u rsu a n t to Federal Rule of Civil Procedure 72, QBE filed objections to Magistrate J u d g e Walker's Order on August 7, 2009. (Doc. # 44.) QBE makes substantially the same a rg u m e n ts in its objections as it made in response to the Motion to Compel: first, that it had g o o d cause for the delay in filing objections; second, that much of the information sought is p ro te c te d by the attorney-client and work-product privileges; third, that the information so u g h t is irrelevant to the declaratory judgment action; and finally, that some of the requests a re ambiguous.

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D IS C U S S IO N T h e Court finds that by failing to object to the propounded requests for production w ith in thirty days of service, QBE waived its objections as to relevance and ambiguity. Chief M ag istrate Judge Walker's Order on these issues was neither clearly erroneous nor contrary to law and was in accord with well-established practice in this district. See Alexander v. C e rte g y Check Servs., Inc., No. 2:05-CV-449-MHT, 2006 WL 1515841 (M.D. Ala. May 30, 2 0 0 6 ); see also Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409 (C.D. Cal. 2005) ("If a party fails to file timely objections to [discovery] requests, such a failure constitutes a w a iv e r of any objections which a party might have to the requests."); Krewson v. City of Q u in c y , 120 F.R.D. 6, 7 (D. Mass. 1988) (same); Third Party Verification, Inc. v. S ig n a tu r e L in k , Inc., No. 6:06-CV-415, 2007 WL 1288361 (M.D. Fla. May 2, 2007) (same). T h e circumstances in this case with respect to the attorney work-product and attorney-client p riv ile g e s , however, command an exception to this general rule of waiver. QBE was unable to waive the attorney work-product privilege. Unlike the attorneyc lie n t privilege, which belongs only to the client, the work-product privilege is shared b e tw e e n the attorney and the client.2 See In re Antitrust Grand Jury, 805 F. 2d 155, 164 (6th C ir. 1986). "[A]n attorney may not unilaterally waive the privilege that his client enjoys." H a n s o n v. U.S. Agency for Intern. Dev., 372 F. 3d 286, 294 (4th Cir. 2004) (discussing the

For purposes of ruling on the Objections, the Court assumes, without deciding, that the documents QBE objects to producing are covered by the work-product privilege. The Court leaves any dispute about the application of the work-product privilege to particular documents for resolution by the Magistrate Judge in the first instance. -5-

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a tto rn e y opinion work-product privilege). Nor can the client unilaterally waive the privilege; th e attorney may contest disclosure even in the face of a client's waiver. Catino v. Travelers In s . Co., Inc., 136 F.R.D. 534 (D. Mass. 1991). The privilege thus belongs to both Haskell, S lau g h ter , and Gallion and Griffin, but not to QBE. Hence, QBE was, even by failure to o b je c t to the propounded requests for production, not free to waive the work-product p r iv i le g e . Moreover, Griffin is represented by different counsel in the underlying state case th a n is QBE in the federal declaratory judgment action. It would be manifestly unjust and c o n tra ry to law to allow QBE's counsel's inaction in the federal case to waive the privilege th a t belongs to Griffin and Haskell, Slaughter, and Gallion. Courts have rightly been hesitant to find implied waivers of the attorney work-product p riv ileg e . For example, the Third Circuit has held that "a party waives the [work-product] p riv ile g e only when he or she `has made the decision and taken the affirmative step in the litig a tio n to place the advice of the attorney in issue.'" U.S. Fire Ins. Co. v. Asbestospray, In c ., 182 F. 3d 201, 212 (3d Cir. 1999); see also In re Lott, 139 Fed. Appx. 658, 660 (6th C ir. 2005) ("To be sure, litigants cannot hide behind the privilege if they are relying upon p riv ile g e d communications to make their case. `[T]he attorney-client privilege cannot at once b e used as a shield and a sword.' . . . But, while the sword stays sheathed, the privilege sta n d s." ); Pamida, Inc. v. E.S. Originals, Inc., 281 F. 3d 726, (8th Cir. 2002) (noting that w h e n assessing a claim of implied or passive waiver of the work-product privilege, "the C o u r t must not only look at whether [the party] intended to waive the privilege, but also

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w h e th e r the interests fairness and consistency mandate a finding of waiver."). Applications in other contexts support prevention of casual waivers of the workp rod u ct privilege. As the Eleventh Circuit has held, some forms of privilege waiver are in a p p lic a b le to attorney work-product. For example, subject-matter waiver, which provides th a t a party loses the privilege by injecting an issue into the case that in fairness requires an e x a m in a tio n of communications otherwise protected by the attorney-client privilege, does n o t extend to materials protected by the work-product privilege. Cox v. Administrator U.S. S te e l & Carnegie, 17 F. 3d 1386, 1422 (11th Cir. 1994) ("Where a party asserts that he b e liev e d his actions to be lawful, he waives the attorney-client privilege as to what his atto rne y told him about the legality of his actions . . . ; his attorney's work-product, however, is a different matter."). Courts are particularly strict with respect to so-called "opinion" w o rk -p ro d u c t, which is what the propounded requests appear to seek. See Williamson v. M o o r e , 221 F.3d 1177, 1182-83 (11th Cir. 2000) (holding that opinion work-product enjoys " a lm o st absolute immunity" from discovery); Cox, 17 F.3d at 1422 (same); see also In re E c h o S t a r Commc'ns Corp, 448 F. 3d 1294, 1302 (Fed. Cir. 2006) ("Second, a party may d is c o v e r work-product if the party waives its immunity. . . . However, work-product waiver is not a broad waiver of all work-product related to the same subject matter like the a tto rn e y-c lie n t privilege. . . . Instead, work-product waiver only extends to "factual" or " n o n -o p in io n " work-product concerning the same subject matter as the disclosed workp ro d u c t."); In re Martin Marietta Corp, 856 F. 2d 619, 624 (4th Cir. 1988) (holding that

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em p lo ye r's prior disclosures to Government in attempt to settle criminal investigation against c o m p a n y constituted waiver of attorney-client privilege and non-opinion work-product p riv ileg e , but did not constitute waiver of opinion work-product privilege); In re C o lu m b ia /H C A Healthcare Corp. Billing Practices Litigation, 293 F. 3d 289, 294 (6th Cir. 2 0 0 2 ) (noting that opinion work-product is available upon a showing of substantial need and in a b ility to otherwise obtain without material hardship, but that "absent waiver, a party may n o t obtain the `opinion' work-product of his adversary"). Similar logic applies to the assertions of attorney-client privilege. QBE nominally o b je c ts that the materials are protected by the attorney-client privilege, but devotes no a rg u m e n ta tio n in support of, and provides no authority for, this assertion. Nevertheless, as w a s the case with the work-product privilege, QBE does not own the attorney-client privilege it asserts and so cannot waive it. The attorney-client privilege belongs to the client, Griffin. In re Grand Jury Proceedings, 73 F.R.D. 647, 652 (M.D. Fla. 1977) ("The privilege, h o w e v e r, belongs to the client, not the attorney; and an attorney can neither invoke nor waive th e privilege if his client desires to the contrary."). It is only he who can waive the privilege. Id .3 Moreover, binding former Fifth Circuit authority suggests that failure to assert even o n e 's own attorney-client privilege in a timely manner does not waive the privilege even

Again, the Court assumes, without deciding, that the materials in question are protected from discovery by the attorney-client privilege. The Court has serious reservations about this assumption, however, as the documents were requested from a third party, QBE, and the privilege is between Haskell, Slaughter and Gallion (the attorneys) and Howard (the client). The Court leaves any dispute about the application of the attorney-client privilege to particular documents for resolution by the Magistrate Judge in the first instance. -8-

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w h e n the privilege is asserted for the first time in a motion for reconsideration of a district c o u rt's order to produce. FDIC v. Cherry, Bekaert & Holland, 131 F.R.D. 596, 606 (M.D. F la . 1990) (citing Southern Railway Co. v. Lanham, 403 F.2d 119, 133-134 (5th Cir.1968)).4 C O N C L U SIO N For the foregoing reasons, the Court finds that QBE's failure to object to the p ro p o u n d e d requests for production did not waive the attorney work-product privilege or the a tto rn e y-c lie n t privilege between Haskell, Slaughter and Gallion and Griffin. The waiver w a s good, however, with respect to QBE's relevance objections and its objections that some o f the requests are ambiguous. Therefore, it is hereby O R D E R E D that the Objections (Doc. # 44) are SUSTAINED in part and O V E R R U L E D in part. The objections are sustained with respect to assertions of workp ro d u c t and attorney-client privileges, and are overruled in all other respects. Accordingly, th e portion of Magistrate Judge Walker's Order directing production of documents covered b y the attorney-client or work-product privileges is VACATED. This Opinion and Order has n o effect on the balance of Magistrate Judge Walker's Order. It is further ORDERED that the Motion to Intervene (Doc. # 45) is DENIED as moot. D o n e this 4th day of September, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. -94