Lewis v. Ameriprise Insurance Company et al
ORDER granting in part and denying in part 44 Motion to Compel Discoveryas set out. Defendants are directed to produce the referenced documents by March 10, 2017. Signed by Magistrate Judge Sonja F. Bivins on 3/6/2017. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
AMERIPRISE INSURANCE COMPANY,
CIVIL ACTION NO. 16-00111-B
This action is before the Court on Plaintiff David Lewis’
Motion to Compel (Doc. 44). Plaintiff seeks an order compelling
Plaintiff’s production requests for Defendants’ claim file and
other documentation regarding the investigation of Plaintiff’s
The motion has been fully briefed, and a discovery
consideration of the parties’ briefs and supporting materials,
the representations of counsel at the discovery conference, and
an in camera review of the “claim file,” Plaintiff’s motion is
granted in part, and denied, in part.
Plaintiff obtained a homeowners insurance policy through
the Ameriprise Defendants for his property located in Uniontown,
Alabama (Doc. 1-1).
A fire destroyed the house on August 15,
2015, and Plaintiff commenced this action against Defendants in
February 2016 for breach of contract and bad faith after they
failed pay under the policy. According to Plaintiff, Defendants
were served with discovery requests which provided “[p]roduce
your entire claims file for the claim made the basis of this
correspondence, emails, notes or documents exchanged between you
and any other person or entity investigating the fire loss made
the subject of this lawsuit.
(Id. at 5).
Plaintiff avers that
Defendants have improperly redacted the majority of the claims
file on the ground of work product generated in anticipation of
litigation when in fact, claim file activity generated prior to
a decision denying the claim does not constitute work product.
In Defendants’ opposition (Doc. 49), they argue that objective
anticipation of litigation beginning at 8:17 on August 17, 2015
when the Ameriprise Defendants sent Lewis’ claim to its special
Defendants further assert that if the Court does not accept
August 17, 2015, as the anticipation of litigation date, August
Defendants’ reservation of rights letter was generated.
II. Standard of Review
Fed. R. Civ. P. 26(b)(1) provides as follows:
nonpriviledged matter that is relevant to any party’s
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
Information within this scope of discovery
need not be admissible in evidence to be discoverable.1
Fed.R. Civ. P. 26(b)(1).
Under the Federal Rules of Civil Procedure, full discovery
is strongly favored whenever possible.
Republic of Ecuador v.
Hinchee, 741 F. 3d 1185, 1189 (llth Cir. 2013).
In a diversity
case, such as this, federal courts apply state law to resolve
claims of attorney-client privilege and joint-defense privilege,
but federal law to resolve claims of privilege under the work
product doctrine. See Developers Surety & Indem. Co. v. Harding
Village, Ltd., 2007 U.S. Dist. LEXIS 49994, 2007 WL 2021939, *1
The 2015 revision to Fed.R.Civ. P. 26(b)(1) became
applicable “insofar as just and practicable” to all pending
proceedings on December 1, 2015. Fed. R. Civ. P. Refs & Annos
(Order of April 29, 2015).
Under the revised rules, the
proportionality facts previously found under Rule 26(b)(2)(C)
have been elevated.
Herrera-Velazquez v. Plantation Sweets,
Inc., 2016 U.S. Dist. LEXIS 4956, 2016 WL 183058, *4 (S.D. Ga.
Jan. 14, 2016).
(S.D. Fla. 2007); McClary v. Walsh, 202 F.R.D. 286, 290 (N.D.
Ala. 2000) (“Because the rule of decision in this diversity case
is supplied by Alabama state law, the law of privileges also
comes from state law.”). Unlike the attorney client privilege,
the work product privilege is governed, even in diversity cases,
by a uniform federal standard embodied in Fed.R.Civ.P. 26(b)(3).
See Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D.
663, 667 (N.D. Ga. 2008)(“In this diversity action, the scope of
the work product doctrine is determined by Rule 26(b)(3) of the
Federal Rules of Civil Procedure.”); United States Fidelity &
Guaranty Co. v. Liberty Surplus Ins. Corp., 2007 U.S. Dist. LEXIS
75972, 2007 WL 3023488, *2 (M.D. Fla. 2007) (“The attorney work
Atrium on the Ocean II Condominium Ass’n, Inc. v. QBE Ins. Corp.,
2007 U.S. Dist. LEXIS 74962, 2007 WL 2972937, *2 (S.D. Fla. 2007)
(applying federal law to issues relating to the work product
The work product privilege provides a qualified immunity
for materials prepared in anticipation of litigation by a party,
an attorney, or other representatives of the party. Hickman v.
Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Rule
26(b)(3)(A)(ii) protects from discovery “documents and tangible
things that are prepared in anticipation of litigation or for
trial by or for another party or its representative (including
insurer, or agent)” unless the requesting party “shows that it
has substantial need for the materials to prepare its case and
equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
The party asserting the work product privilege bears the burden
of establishing its application over the documents it seeks to
See Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 697
specifically raised and demonstrated rather than asserted in a
Id. at 698.
Pure facts are not subject to the attorney-client privilege
attorney’s mental impressions, conclusions, opinions, or legal
theories, is referred to as ‘opinion work product.’”
Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th
Cir.), opinion modified on reh’g on other grounds, 30 F.3d 1347
(11th Cir. 1994) (citations omitted).
“Not even the most liberal
of discovery theories can justify unwarranted inquiries into the
files and the mental impressions of an attorney.” Id. (citing
Hickman, 329 U.S. at 510).
“In Upjohn, [v. United States, 449
U.S. 383, 395-96 (1981)], the Supreme Court made clear that an
attorney’s notes and memoranda of a witness’s oral statements is
considered to be opinion work product.”
“As Rule 26(b)(3)
makes apparent, ‘opinion work product can not be discovered upon
a showing of substantial need and an inability to secure the
without undue hardship.’”
Id. (citations omitted).
“opinion work product enjoys a nearly absolute immunity and can
be discovered only in very rare and extraordinary circumstances.”
Id. (citations omitted).
Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 698 (S.D. Fla.
“Materials or documents drafted in the ordinary course of
business are not protected.” Id.; see also Cutrale Citrus Juices
USA, Inc. v. Zurich Am. Ins. Group, 2004 U.S. Dist. LEXIS 22487,
2004 WL 5215191, *2 (M.D. Fla. 2004) (“The work product doctrine
protects from disclosure materials prepared in anticipation of
(including its attorney). . . . The work product doctrine was not
intended to protect from general discovery materials prepared in
the ordinary course of business[.]”).
As noted, in this case, Plaintiff contends that the claim
file produced by Defendants is essentially useless due to the
The crux of the dispute is at what point did
the file in question go from claims investigation and processing
to anticipation of litigation.
Courts within this Circuit have
constitute work product in the early stages of investigation,
when the insurance company is primarily concerned with ‘deciding
whether to resist the claim, to reimburse the insured and seek
subrogation. . .or to reimburse the insured and forget about the
Carver v. Allstate Ins. Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982).
The court in Carver observed that claim files “straddle both
ends of this definition, because it is the ordinary course of
business for an insurance company to investigate a claim with an
litigation is imminent, however, the claims investigation file
is maintained ‘in anticipation of litigation’ and its contents
are protected by the work product doctrine.”
F.R.D. at 667.
Courts analyze the facts of each case while
using phrases like whether litigation was
document was created ‘because of’ actual or
expected litigation. See e.g., Maher, 143
S.W.3d at 912 (‘For the privilege to apply,
preparation for litigation must be the
primary motivating purpose underlying the
creation of the document.’); Wells Dairy,
Inc. v. Am. Indus. Refrigeration, Inc., 690
N.W.2d 38, 47-48 (Iowa 2004) (if documents
would have been created in essentially
similar form irrespective of litigation, it
cannot fairly be said that they were created
because of actual or impending litigation,
and documents would not be entitled to workproduct
conceptualizations all involve an attempt to
discern when an insured likely will resort
behaviors, line-drawing here at best will be
imprecise. See e.g., Meighan v. TransGuard
Ins. Co. of Am., Inc., 298 F.R.D. 436, 448
(N.D. Iowa 2014).
154629, 2015 WL 7196478, *5 n.10 (S.D. Ga. Nov. 16, 2015).
In this case, the fire loss occurred on August 15, 2015.
Two days before the fire, Defendants had notified Plaintiff that
inspection was not completed.
The Ameriprise Defendants take
the position that, due to this activity immediately before the
fire, the fire was considered suspect from the beginning and was
referred to SIU on August 17, 2015.
While the origin and cause
A review of the claims file reveals that, in the months
handling because Defendants were gathering information regarding
the origin and cause of the fire as well as investigating the
accuracy of information provided by Plaintiff. The issuance of
the reservation of rights letter on August 28, 2015, and the
engagement of the Michigan Investigative Group to complete the
advising Plaintiff and his counsel that the investigation was
continuing and that additional time was needed to complete the
investigation, but they were also asking Plaintiff to provide
specific categories of information to substantiate his claim.
Such activity clearly suggests that litigation was not imminent,
that Defendants were still in the fact gathering mode, and that
Plaintiff’s claim was still under consideration. It was arguably
not until January 2016, when the decision was made, based on the
insurance policy. This is the point at which
Accordingly, the undersigned finds that Plaintiff is
through January 21, 2016.
The undersigned notes that while it
appears that the SIU/MIG report (bates no. CLM Docs—00000075)
was not made a part of the claims file until January 27, 2016,
transcriptions of witness interviews conducted in September 2015
as part of the investigation of Plaintiff’s claim.
are directed to produce the above referenced documents by March
In light of the above, the scheduling order (Doc. 40) will
be modified by separate order.
DONE this 6th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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