Turner v. Allstate Insurance Company
Filing
217
MEMORANDUM OPINION AND ORDER GRANTING 153 MOTION to Compel the redeposition of Jim DeVries, as further set out in order. Signed by Honorable Judge Charles S. Coody on 5/24/17. (djy, )
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
GARNET TURNER,
)
Individually and on behalf of all others )
Similarly situated, et al.,
)
)
Plaintiffs
)
)
v.
) CIV. ACT. NO. 2:13-cv-685-WKW
)
ALSTATE INSURANCE CO.,
)
)
Defendant
)
_____________
JOHN E. KLASS,
)
Individually and on behalf of all others )
Similarly situated, et al.,
)
)
Plaintiffs
)
)
v.
) CIV. ACT. NO. 2:15-cv-406-WKW
)
ALSTATE INSURANCE CO.,
)
)
Defendant
)
MEMORANDUM OPINION AND ORDER
In these consolidated ERISA1 cases, former employees of Allstate contend
that Allstate failed to provide them with “paid up” life insurance policies as promised
as part of their retirement plan. On October 7 2016, the plaintiffs deposed Jim
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Employee Retirement Income Security of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq.
Devries, Allstate’s former Executive Vice President of Operations. Now, in a motion
to compel, the plaintiffs want to redepose DeVries. (Pl. Mot. to Compel, Doc. #
153) During the original deposition, the following colloquy took place.
Q
To your knowledge, in making the decision to terminate
the retiree life Insurance benefits to Allstate employees, did you
consider what commitments Allstate had made to its home office
employees when it issued a special retirement opportunity to them in
the mid ‘90’s?
A
Do I answer about about the legal review?
MR. BLOCKER: you can’t––you can’t provide any
testimony about any conversation you had with the lawyers.
BY MR. PEARL:
Q
Do you understand the question?
A
Yes.
Q
I’m not asking you to tell me what you may have learned
from a lawyer Allstate or outside lawyer. My question is what you
considered and if you considered what commitments Allstate made to
its home office employees.
MR. BLOCKER: Well again, I know you think those are
different questions, but –
MR. PEARL:
They are.
MR. BLOCKER: Like I said, I know you think those are
different questions.
But if his answer requires him to divulge
communications he had with Counsel, then I’m instructing him not to
answer with respect to those communications.
2
BY MR. PEARL:
Q
And you understand I’m not asking you to divulge any
communications with counsel. And I’m certainly not asking to you
devulge any communications that you had recently with counsel.
I’m asking back in 2012, 2013, in your process to
determine whether to terminate the life Insurance coverage for Allstate
retirees, you considered––you considered whether Allstate had made
any commitments to this home office employees as part of the special
retirement opportunity offered in the mid ‘90s.
MR. BLOCKER: Same caution, Jim. If your answer
would require you to divulge communications that you’ve had with
Counsel, you shouldn’t divulge those communications.
A
It is central to the answer.
(DeVries Dep, Doc. # 153-3 at 10-12)
That wasn’t the last time counsel tried to get a response from DeVries about
commitments to retirees.
A
Did I every review documents?
Q
Yes.
A.
This is in the same neighborhood as our questions earlier
about getting the advice of Counsel.
Q
Well, I’m not – I’m not asking whether you received
advice of Counsel. My simple question is have you reviewed any
documents.
A
I don’t know if I – I don’t recall if I reviewed documents.
Q
Okay. My earlier question to which I think I was going to
get a ruling from your Counsel was whether or not you considered what
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commitments had been made to the retirees who took advantage of the
home office SRO in the mid 190s.
MR. BLOCKER: Bob, we -- I talked to Mr. DeVries about that
at the break, and it is – he can't answer the question without divulging
communications that he had with Counsel. So I don't think -- I'm
instructing him not to answer to the extent he needs to divulge
communications, and he can't answer your question without doing so.
MR. PEARL: Well, I guess my question is a little bit different
from that, and that is -- it is very narrow. And that is whether he,
the witness, considered the SRO issues at that time.
MR. BLOCKER: Again, I know you think that is a different
question, but it is not. From my perspective, it is the same
question. So I'm giving him the same instruction with respect to
that.
MR. HOOD: Chris Hood for the Turner Plaintiffs. I don't intend
to examine the witness, but we would contend that a fact, merely
because it is a subject of discussion between the witness and the
defendant's attorney, is not shielded from discovery simply
because it was the subject of that discussion. I'll cite Black Letter
Rules 25 FRD 203, a case called State Farm Mutual, or 137 FRD
267, Protective National Insurance. The fact or event or
document is not cloaked with a privilege and is the subject
property of a question in discovery. And the fact that it may or
may not have been subject to discussion between the witness and
Counsel doesn't cloak it with any privilege or immunity. I
understand Bob's question to be at the time these decisions were
made to cancel the life insurance benefit, was -- did the witness
take into account the SRO retirees. And that seems to be a fair
question, fair fact. So we join with Bob. We'd like an answer to
it.
MR. BLOCKER: Yeah. I'm not -- I'm not changing my
instruction.
(DeVries Dep, Doc. # 153-3 at 13-15)
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As the court will now explain, he should have.
The attorney-client privilege is intended to encourage “full and frank
communications between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of justice.” Upjohn Co.
v. United States, 449 U.S. 383, 389 (1981). The privilege protects the disclosures
that a client makes to his attorney, in confidence, for the purpose of securing legal
advice or assistance. In re Grand Jury (G.J. No. 87–03–A), 845 F.2d 896, 897 (11th
Cir.1988). The privilege is grounded “in the interest and administration of justice,
of the aid of persons having knowledge of the law and skilled in its practice, which
assistance can only be safely and readily availed of when free from the consequences
or the apprehension of disclosure.” Hunt v. Blackburn, 128 U.S. 464, 470 (1888).
Because the attorney-client privilege is an exception to the principle of full
disclosure, the party asserting protection under the privilege generally bears the
burden of proving the applicability of the privilege. Courts also typically construe
the attorney-client privilege to its narrowest permissible limits. See, e.g., Fisher v.
United States, 425 U.S. 391, 403 (1976); Garner v. Wolfinbarger, 430 F.2d 1093,
1101 (5th Cir. 1970). A narrow construction insures that knowledge of as many
facts as possible will lead to the truth. See e.g., Camacho v. Nationwide Mut. Ins.
Co., 287 F.R.D. 688, 692 (N.D. Ga. 2012).
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The question which started all of this was whether DeVries considered
something in making a decision. That question concerns an historical fact. He either
considered something or he did not. That kind of historical fact is not privileged.
DeVries’ response mentioned a legal review. Questions about a legal review might
well be privileged, but we can’t know that because first, that question wasn’t asked
and secondly, DeVries wasn’t allowed to answer. Speculation about what might
have been asked if DeVries had answered the original question gets us nowhere. The
issue is simply whether a question about what he considered is protected. It is not.
It is not even if he had learned the fact from a lawyer. See State Farm Mut. Auto.
Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008) (noting that the
plaintiff could not instruct its witness not to disclose any facts learned in discussion
with counsel); Protective Nat'l Ins. Co. of Omaha v. Commonwealth Ins. Co., 137
F.R.D. 267, 279 (D. Neb. 1989) (allowing questions into what facts supported the
plaintiff's allegations even though the witness learned those facts through counsel).
And, to a certain extent, the same is true with regard to questions about
whether DeVries reviewed documents. Whether he did or did not is an historical
fact. Even if he did it at the behest of a lawyer, the fact of a review or not is simply
not privileged. If counsel had asked what documents he reviewed, that answer might
be privileged because it might disclose the lawyer’s mental opinions and thought
processes. See Hickman v. Taylor, 329 U.S. 495, 511 (1947). But, that question
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wasn’t asked because DeVries was not allowed to answer whether he reviewed
documents.2 In effect, the instruction to DeVries amounted to a blanket claim of
privilege because his answers were related to conversations he had with lawyers.
Such a blanket claim of privilege is impermissible. Moore v. Metropolitan Life Ins.
Co., 2011 WL 2559627, at *2 (M.D.Ala. 2011).
A word of caution is appropriate. From the context of the deposition, it is
obvious that DeVries had a meeting or conversations with lawyers. Generally
historical facts he learned would not be privileged, but even that conclusion must be
tempered with caution if those facts disclose the lawyer’s opinions and thought
processes. Counsel, therefore, should evaluate the importance of the information
they seek from DeVries and whether there are other avenues for learning those facts.
For the foregoing reasons, it is
ORDERED that the motion to compel (Doc. # 153) the redeposition of Jim
DeVries be and is hereby GRANTED.3
Done this 24th day of May, 2017.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
2
The court recognizes DeVries said he couldn’t recall, but that response came in the context of
cautions about not disclosing privileged information which may have affected DeVries’
recollection.
3
Other aspects of the motion have been resolved.
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