Jalowsky v. Provident Life and Accident Insurance Company et al

Filing 361

ORDER that the plaintiff's motion, filed on 3/18/2020, to "compel the production of unredacted audit trail documents or legally adequate privilege log" is DENIED. (Doc. 266 ) It is further Ordered that the defendants' motion, filed on 4/17/2020, that the court "disregard new arguments and evidence in plaintiff's reply brief or, in the alternative, motion for leave to file a sur-reply" is DENIED as MOOT. (Doc. 316 ) Signed by Magistrate Judge Leslie A Bowman on 6/25/2020. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Herbert Jalowsky, M.D., an individual,
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Plaintiff,
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vs.
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Provident Life and Accident Insurance)
Co., a Tennessee corporation; Unum)
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Group, a Delaware corporation,
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Defendants.
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_________________________________ )

No. CV 18-279-TUC-CKJ (LAB)
ORDER

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Pending before the court is the plaintiff’s motion, filed on March 18, 2020, to “compel
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the production of unredacted audit trail documents or legally adequate privilege log.” (Doc.
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266) The defendants filed a response on April 1, 2020. (Doc. 300) The plaintiff filed a
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reply on April 9, 2020. (Doc. 305)
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Also pending is the defendants’ motion, filed on April 17, 2020, that the court
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“disregard new arguments and evidence in plaintiff’s reply brief or, in the alternative, motion
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for leave to file a sur-reply.” (Doc. 316) The plaintiff filed a response on April 21, 2020.
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(Doc. 323) The defendants filed a reply on April 24, 2020. (Doc. 328)
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This is an insurance bad faith action in which the plaintiff, Jalowsky, alleges that the
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defendants misclassified his disability as being due to a sickness rather than an injury which
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reduced the amount of his benefits. (Doc. 17) In the pending motion, the plaintiff moves,
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pursuant to Fed.R.Civ.P. 37, 26 and LRCiv 37.1, that this court compel the defendants to

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produce an unredacted audit trail for work performed on his claim for benefits.

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Background

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In the course of discovery, Jalowsky served on the defendants Request for Production

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26 seeking “a complete audit trail for all work performed on Dr. Jalowsky’s claim.” (Doc.

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266, p.2) “An audit trail is a log that documents each time a claim file is accessed by any

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Unum personnel.” Id. “It identifies the date and time of access and the employee who

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accessed it.” Id.

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The defendants subsequently produced audit trail documents in response to the

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Request, but those documents contained redactions that eliminated all information for certain

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entries. See, e.g., (Doc. 266-6, p. 5) (redacting all information for Entries 937, 943, 950,

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953, 959, 960, 961, 967, 969 and 970) When Jalowsky objected to the redactions, the

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defendants explained that those redactions “are for activities performed by legal personnel.”

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(Doc. 266, p. 3) The defendants informed Jalowsky that they “assert[] attorney-client

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privilege for those activities performed before Plaintiff filed his Complaint” and “assert[]

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attorney-client privilege and work product for those activities performed after Plaintiff filed

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his Complaint.” Id. Jalowsky asked for the identification of those “legal personnel,” but the

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defendants refused to supply that information. (Doc. 266, p. 4)

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On March 18, 2020, Jalowsky filed the pending motion seeking an unredacted audit

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trail or a privilege log. (Doc. 266) In their response, the defendants report that they have

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amended their initial disclosure and produced audit trail documents with a reduced level of

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redaction. See (Doc. 300) For example, in the first set of audit trail documents, no

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information for Entry 943 was disclosed. Now, the audit trail documents show for Entry 943

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that on 2019-5-22, at 10:58 a.m., Cesar Britos accessed Jalowsky claim folder. (Doc. 300,

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p. 48) Cesar Britos is “the Unum in-house litigation counsel assigned to Dr. Jalowsky’s

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current lawsuit.” (Doc. 266, p. 2) The current documents still redact1 information from

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“Column B,” under the heading “Description,” which would identify what Britos did when

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he accessed the folder. (Doc. 300, p. 48); (Doc. 266-3, p. 2) The “Description” column is

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not very wide, so the descriptions are relatively short – e.g., View Folder, Create Activity,

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Activity Completed, and Activity Completion Notification Completed. (Doc. 300, pp. 47-48)

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Jalowsky argues that the defendants must disclose this information to prove that these “legal

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personnel” were really performing legal duties and not claims adjustment activities, which

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are not privileged. (Doc. 266, p. 4) (citing Fed.R.Civ.P. 26(b)(5)(A)(i)-(ii))

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Discussion

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Pursuant to Rule 37(a)(3)(B)(iv):

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A party seeking discovery may move for an order compelling an answer,
designation, production, or inspection. This motion may be made if . . . a party
fails to produce documents . . . as requested under Rule 34.

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Fed.R.Civ.P. Rule 34, in turn, permits a party to make “a request within the scope of Rule

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26(b) . . . to produce . . . any designated documents or electronically stored information . .

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. .”

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nonprivileged matter that is relevant to any party’s claim or defense. . . .” Fed.R.Civ.P.

Fed.R.Civ.P.

And, Rule 26(b)(1) permits discovery requests “regarding any

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In this case, Jalowsky moves pursuant to Rule 37(a)(3)(B)(iv) for an order compelling

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the defendants to remove the redactions from the audit trail documents to enable him to see

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what activities the legal personnel were pursuing when they accessed his claim file. (Doc.

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266) Jalowsky notes that some attorney activities are not privileged from discovery because

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they do not involve legal activities. For example, if an attorney were performing simple

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claims processing duties, an activity ordinarily performed by a non-attorney, those activities

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would not be covered under the attorney-client privilege. (Doc. 266, p. 4) Jalowsky believes

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The documents also redact all information from Column D, which is labeled
“UserId.” (Doc. 300, p. 48); (Doc. 266-3, p. 2) Jalowsky does not object to this redaction.
(Doc. 305, p., 3)

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that some of the redacted entries may relate to non-legal duties. He therefore insists that the

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defendants remove the redactions from the audit trail documents, so he can see for himself.

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The defendants, on the other hand, maintain that the “protected information constitutes

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opinion work product because it reflects the mental impressions and strategy of counsel

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developed in anticipation of litigation.” (Doc. 300, p. 4)

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information must demonstrate a “compelling need,” and Jalowsky, they argue, has not done

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so. Id., (citing Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.

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1992))

A party seeking this type of

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The court concludes that the defendants’ amended disclosure is sufficient to comply

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with the Rules of Civil Procedure. When asserting a privilege, the proponent must reveal

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enough information to allow the opposing party to adequately assess the claim of privilege

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without revealing the privileged information. Rule 26(b)(5)(A)(ii) reads in pertinent part as

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follows:

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When a party withholds information otherwise discoverable by claiming that
the information is privileged or subject to protection as trial preparation
material, the party must . . . describe the nature of the documents,
communications, or tangible things not produced or disclosed – and do so in
a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the claim.

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Fed.R.Civ.P.
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“The rule does not attempt to define for each case what information must be provided
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when a party asserts a claim of privilege or work product protection.” Fed.R.Civ.P. 26,
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Advisory Committee Notes, 1993 Amendment. “Details concerning time, persons, general
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subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly
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burdensome when voluminous documents are claimed to be privileged or protected,
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particularly if the items can be described by categories.” Id. “The level of detail required
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to identify the information being withheld on a claim of privilege without breaching the
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privilege is likely a matter that can only be determined on a case-by-case basis.” Zelaya v.
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H&F Transportation, Inc., 2016 WL 11583012, at *4 (W.D. Tex. 2016).
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In this case, the amended audit trail documents reveal each instance when a member

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of Unum’s legal staff accessed Jalowsky’s claim file. The name of the staff member is

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disclosed along with the time that the file was accessed. The defendants assert that each staff

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member was engaged in activity protected by the attorney-client or the work product

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privilege. The only information withheld is the two, three, or four word “Description” of

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each activity.

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Jalowsky argues that the defendants must disclose this “Description” in order for him

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to properly assess the defendants’ claim that the information is privileged. Unfortunately,

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the “Description” is the only information that the defendants seek to protect. If the

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defendants were required to disclose the “Description” in order to claim the privilege, the

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privilege would be lost in the same breath with which it was asserted. Fortunately, the Rule

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does not require this. The Rule states that the nature of the privileged entry must be

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described “without revealing information itself privileged or protected.” Fed.R.Civ.P.

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26(b)(5)(A)(ii). The defendants have described the nature of the privileged entries as well

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as possible under the unique circumstances presented here. See Fed.R.Civ.P. 26, Advisory

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Committee Notes, 1993 Amendment

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information affecting applicability of the claim . . . may itself be privileged; the rule provides

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that such information need not be disclosed.”). Accordingly,

(“In rare circumstances some of the pertinent

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IT IS ORDERED that the plaintiff’s motion, filed on March 18, 2020, to “compel the

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production of unredacted audit trail documents or legally adequate privilege log” is DENIED.

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(Doc. 266) IT IS FURTHER ORDERED that the defendants’ motion, filed on April 17,

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2020, that the court “disregard new arguments and evidence in plaintiff’s reply brief or, in

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the alternative, motion for leave to file a sur-reply” is DENIED as MOOT. (Doc. 316)

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DATED this 25th day of June, 2020.

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