Wellinger Family Trust 1998, The et al v. Hartford Life and Accident Insurance Company

Filing 74

ORDER denying 72 Plaintiff's Unopposed Supplemental Motion for In Camera Review of Two Privilege Log Items. by Magistrate Judge Boyd N. Boland on 4/2/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-02568-CMA-BNB
THE WELLINGER FAMILY TRUST 1998;
JULIE WELLINGER, trustee, and
JULIE WELLINGER, individually,
Plaintiffs,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, a Connecticut insurance
company,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Plaintiffs’ Unopposed Supplemental Motion for In Camera
Review of Two Privilege Log Items [Doc. # 72, filed 3/28/2013] (the “Motion”), which is
DENIED.
The plaintiffs in the Motion identify two documents contained on the defendant’s
privilege log which they contend are not subject to any applicable immunity from discovery.
The plaintiffs’ position with respect to the documents is set out in the Motion, but I do not have
the benefit of the defendant’s position. I note, however, that the privilege log alleges that the
documents are protected from discovery on a number of bases including “Attorney-client
privilege; Work Product, Fed. R. Civ. P. 26(b)(3); Proprietary and Confidential business
materials in which Hartford has a competitive interest.” At least the last basis ordinarily is
insufficient to resist production altogether and, instead, may be addressed by a blanket protective
order intended to preclude public dissemination of proprietary information. Such an order is in

place in this case. Stipulated Protective Order [Doc. # 47].
The privilege log also resists production of the documents because “[t]his information
was obtained in order to assist with research conducted by the legal department and opinions to
be rendered to Hartford by its in-house legal department.” The explanation is unclear because it
fails to allege either that the information was communicated between a lawyer and a client for
the purpose of obtaining confidential legal advice, which ordinarily would be required to justify
the assertion of the attorney-client privilege, or that it was obtained in anticipation of litigation,
ordinarily required to establish protection under the work-product immunity.
I direct the parties to engage in a further conference on the issue. In the event they
cannot reach agreement, the plaintiffs may, if they deem it appropriate, file a motion to compel
the production of the disputed documents with supporting authority, to which the defendant will
be required to respond. The parties should bear in mind the cost shifting provisions of Fed. R.
Civ. P. 37(a)(5) in formulating their positions.
IT IS ORDERED that the Motion [Doc. # 72] is DENIED.
Dated April 2, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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