Colorado Mills, LLC v. Philadelphia Indemnity Insurance Company
Filing
60
ORDER granting in part and denying in part 27 Plaintiff's Motion to Compel, by Magistrate Judge Michael E. Hegarty on 4/2/2013. (mehcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01830-CMA-MEH
COLORADO MILLS, LLC, a Colorado limited liability company,
Plaintiff,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, a Pennsylvania insurer,
Defendant.
ORDER ON MOTION TO COMPEL
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff has filed a Motion to Compel [filed February 21, 2013; docket #27], which has been
referred to this Court for disposition [docket #28]. The matter is fully briefed, and the Court has
conducted an in camera review of the challenged withheld documents. For the reasons that follow,
the Court grants in part and denies in part the motion to compel.
BACKGROUND
Plaintiff initiated this action on July 12, 2012. Essentially, Plaintiff alleges that Defendant,
in bad faith, breached its duty to defend and/or advance defense fees in connection with covered
claims asserted against the Plaintiff. Defendant counters that its decision to deny was correct in that
the claim was not first made during the policy period as required and Plaintiff made material
representations in the application for insurance.
In the present motion, Plaintiff seeks disclosure of documents and communications
characterized as confidential by Defendant pursuant to the attorney-client privilege and work
product doctrine. Specifically, Plaintiff wants copies of the contents of the claim investigation file
dated before Defendant’s June 30, 2011 decision to deny Plaintiff’s claim (“challenged documents”).
With respect to this matter, the Court finds the following facts are necessary to consider in
evaluating the motion. On December 8, 2010, Plaintiff filed a claim with Defendant seeking
reimbursement of its defense fees and costs pursuant to the applicable insurance policy for the
prosecution and defense of the underlying civil claims to be adjudicated in an arbitration and for the
bankruptcy proceedings involving a related entity, Colorado Sun Oil Processing (“CSOP”).
Complaint, ¶¶ 14-18, docket #4. The Defendant retained Sedgwick, Detert, Moran & Arnold LLP
(“Sedgwick”) to investigate whether the claim was covered under the policy. On March 21, 2011,
Sedgwick issued a letter informing the Plaintiff that Defendant denied coverage for the bankruptcy
proceeding, but, under a reservation of rights, would reimburse defense costs for the arbitration
involving the counterclaims against the Plaintiff. Docket #55-6. On April 6, 2011, Plaintiff
responded to Sedgwick challenging some findings by Sedgwick on behalf of Defendant concerning
allocation of the fee reimbursement between Plaintiff’s affirmative claims and Plaintiff’s defense
of counterclaims, as well as concerning the selection of Allen & Vellone as counsel for Plaintiff and
whether fee reimbursement should be ongoing. Docket #43-6. In this letter, Plaintiff demanded a
response within five days; “[o]therwise, we will be forced to proceed with an insurance bad faith
claim, along with other tort and contract claims at our disposal against Philadelphia.” Id. On June
30, 2011, Sedgwick issued a letter informing Plaintiff that Defendant denied coverage for the
tendered claims. Complaint, ¶ 22, docket #4.
Defendant opposes the Plaintiff’s present motion arguing that it has properly withheld
documents in the investigation file that pertain to legal advice sought and/or provided by the
2
attorney/investigator, and to work produced in anticipation of litigation. To evaluate whether the
challenged documents are privileged or, otherwise, protected, the Court directed Defendant to
produce copies of the documents to the Court for in camera review. Upon review of the challenged
documents, as well as the motion and the briefing, the Court is now fully advised as to the matters
raised and finds as follows.
DISCUSSION
I.
Legal Standards
In diversity jurisdiction cases such as this one, state law controls the issues of privilege raised
by the parties. See Fed. R. Evid. 501 (2012); see also Frontier Refining, Inc. v. Gorman-Rupp Co.,
136 F.3d 695, 699 (1998). In Colorado, the attorney-client privilege is “established by the act of a
client seeking professional advice from a lawyer and extends only to confidential matters
communicated by or to the client in the course of gaining counsel, advice, or direction with respect
to the client’s rights or obligations.” People v. Tucker, 232 P.3d 194, 198 (Colo. App. 2009) (citing
Losavio v. Dist. Court in and for Tenth Judicial Dist., 533 P.2d 32, 35 (Colo. 1975)); see also People
v. Trujillo, 144 P.3d 539, 542 (Colo. 2006) (“the attorney-client privilege applies to confidential
matters communicated by or to the client in the course of obtaining counsel, advice, or direction with
respect to the client's rights or obligations”). The privilege applies only to communications under
circumstances giving rise to a reasonable expectation that the communications will be treated as
confidential. Tucker, 232 P.3d at 198 (citing Wesp v. Everson, 33 P.3d 191, 197 (Colo. 2001)).
Mere statements of fact are not protected by the attorney-client privilege. Trujillo, 144 P.3d at 545
(citing Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000) (noting that “the privilege protects only
the communications to the attorney; it does not protect any underlying and otherwise unprivileged
3
facts that are incorporated into a client’s communication to his attorney”)). “The burden of
establishing the applicability of the attorney-client privilege rests with the claimant of the privilege.”
Black v. Southwestern Water Conservation Dist., 74 P.3d 462, 467 (Colo. App. 2003) (citing Clark
v. District Court, 668 P.2d 3, 8 (Colo. 1983)); see also In re Foster, 188 F.3d 1259, 1264 (10th Cir.
1999).
“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).” Frontier
Refining Inc., 136 F.3d at 702 n. 10 (internal quotation omitted). To be subject to the work product
doctrine the materials must have been “prepared in anticipation of litigation. It does not protect
materials prepared in the ‘ordinary course of business.’” Weitzman v. Blazing Pedals, Inc., 151
F.R.D. 125, 126 (D. Colo. 1993) (citation omitted). Thus, to receive work product protection, the
party resisting discovery must demonstrate that the information at issue “was prepared by the
attorney in anticipation of litigation or for trial.” In re Grand Jury Proceedings, 616 F.3d 1172,
1184-85 (10th Cir. 2010); see also Pepsico, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817
(8th Cir. 2002) (stating that “[i]n order to protect work product, the party seeking protection must
show the materials were prepared in anticipation of litigation, i.e., because of the prospect of
litigation”) (emphasis added).
The court in Martin v. Monfort, Inc., 150 F.R.D. 172 (D. Colo. 1993), set forth a process to
be considered in determining a claim for work product protection:
Rule 26(b)(3) ... contemplates a sequential step approach to resolving work product
issues. First, the party seeking discovery must show that the subject documents or
tangible things are relevant to the subject matter involved in the pending litigation
and are not privileged. Once such a showing has been made, the burden shifts to the
party seeking protection to show that the requested materials were prepared in
anticipation of litigation or for trial by or for the party or the party's attorney,
4
consultant, surety, indemnitor, insurer or agent. Such a showing may be made by
affidavit, deposition testimony, answers to interrogatories, and the like. If the Court
concludes that the items were prepared in anticipation of litigation, the burden shifts
back to the requesting party to show: (a) a substantial need for the materials in the
preparation of the party's case; and (b) the inability without undue hardship of
obtaining the substantial equivalent of the materials by other means. Finally, even
if substantial need and unavailability are demonstrated, the Court must distinguish
between factual work product, and mental impressions, opinions, and conclusions,
for the latter are rarely, if ever, subject to discovery.
Id. at 172-73 (internal citations omitted).
II.
Do the Privileges Apply?
Defendant contends that it is properly withholding the challenged documents on the bases
of the attorney-client privilege and/or the work product doctrine. The Court will analyze each
doctrine to determine whether either applies to justify Defendant’s non-disclosure of the challenged
documents.
A.
Attorney-Client Privilege
“Not every document drafted by counsel or every communication with counsel is protected
by the attorney-client privilege.” Hurtado v. Passmore & Sons, L.L.C., No. 10-cv-00625-MSKKLM, 2011 WL 2533698, at *4 (D. Colo. June 27, 2011) (citing Nat’l Farmers Union Prop. & Cas.
Co. v. Dist. Court, 718 P.2d 1044, 1049 (Colo. 1986)). For example, the attorney-client privilege
does not protect the results of a factual investigation conducted by counsel relating to the origination
of an insurance policy and the validity of a claim. Nat’l Farmers Union Prop. & Cas. Co., 718 P.2d
at 1048-49. Moreover, “if a lawyer is acting in an investigative capacity, and not as a legal
counselor, with reference to whether an insurance claim should be paid, then neither the privilege
created by this statute nor the work product privilege protects communications from a lawyer to an
insurance carrier.” Munoz v. State Farm Mut. Auto. Ins. Co., 968 P.2d 126, 130 (Colo. App. 1998)
5
(citing Nat’l Farmers Union Prop. & Cas. Co., 718 P.2d at 1044) (concluding that, although some
information disclosed may have been privileged, defendant did not make a sufficient showing of
prejudice to find reversible error by the trial court).
To determine whether any of the challenged documents are subject to the attorney-client
privilege, the Court must consider whether: (1) the information was provided by agents of the
corporate client “to counsel acting as counsel” at the direction of supervisors, (2) the information
was necessary for the provision of legal advice, (3) the agents were aware that their communications
were made for the purpose of counsel rendering legal advice to the corporate client; and (4) the
communications were treated as confidential. Nat’l Farmers Union Prop. & Cas. Co., 718 P.2d at
1049 (citing Upjohn Co. v. United States, 449 U.S. 383, 394-95 (1981)).
1.
Documents re: Coverage
As set forth in its privilege logs, Defendant withholds certain documents contained in the
insurance claim file, claim notes, and correspondence that reveal communications between
Defendant and Sedgwick. Defendant contends that “coverage analysis” by Sedgwick is different
than claim investigation and, thus, any communication concerning coverage analysis is privileged
and properly withheld. Importantly, Defendant cites no case law nor other authority supporting this
contention.
In fact, the mere retention of an attorney to investigate a claim does not automatically render
privileged all communications concerning the investigation. In Nat’l Farmers Union Prop. & Cas.
Co., the insurance company invoked the attorney-client privilege with respect to a memorandum
“prepared by outside counsel in response to a request for legal advice relating to an investigation
of the origination of the policy and the validity of the claim.” 718 P.2d at 1048. The Colorado
6
Supreme Court determined that none of the Upjohn factors applied to the challenged portion of the
memorandum that contained information from “interviews with various officers and employees for
the purpose of determining the factual circumstances underlying the issuance of the policy.” Id. at
1049. The court concluded that, with respect to this portion of the memorandum, “the attorneys
were acting more in the role of claims investigators than legal counsel for NFU.” Id.
Here, a review of documents from December 2010 to June 2011 concerning coverage reveals
that Defendant was not solely seeking legal advice from Sedgwick as counsel but, rather, Defendant
largely sought factual information and an evaluation concerning whether Plaintiff’s claims were
covered.
Certainly, insurance claims adjustors/representatives provide the same type of
investigation and evaluation for their insurance company employers. See Western Nat’l Bank of
Denver v. Employers Ins. of Wausau, 109 F.R.D. 55, 57 (D. Colo. 1985) (noting that materials
created by attorneys acting in the capacity of investigator and adjustor for an insurance company are
prepared in the ordinary course of business); see also St. Paul Reinsurance Co., Ltd. v. Commercial
Fin. Corp., 197 F.R.D. 620, 636 (N.D. Iowa 2000) (in analyzing a work product question, the court
concluded that “an insurer’s investigation of whether coverage exists is required and the conduct
of that much of its investigation is assuredly in the ordinary course of its business”) (emphasis in
original).
In addition, some of the withheld communications here do not seek legal advice at all.
Furthermore, most written communications (here, emails) do not reflect that the parties to the
communications considered the content to be confidential; that is, there is no indication in the
content of the communication that the parties intended to keep the content confidential. And,
although Defendant argues its claim representative, Susan Shue, testified that she sought “advice”
7
from Sedgwick on certain occasions, a review of the documents reveals that any such advice with
respect to coverage actually consists of Sedgwick’s evaluation of its investigation. Therefore,
Defendant fails to demonstrate the first, second and fourth Upjohn factors with respect to certain
written communications (as listed below), and the privilege does not apply.1
2.
Documents re: Rates and Allocation of Attorney’s Fees
However, the Court agrees with Defendant that “issues” arose during the course of the
investigation concerning the rates (fee per hour) to be reimbursed to Plaintiff’s counsel and the
allocation of fees to reimbursed – that is, whether Defendant would pay Plaintiff’s attorney’s fees
for both prosecution and defense of claims. During this time, Defendant sought advice from
Sedgwick as counsel concerning these issues. Because the information provided by and to
Defendant concerning rates and allocation of attorney’s fees was intended to be confidential between
the attorney and client, the Court concludes that all communications between Defendant and
Sedgwick regarding the rates and allocation are privileged and need not be disclosed.
B.
Work Product Doctrine
Protection under the work-product doctrine in diversity cases is governed by federal law as
set forth in Fed. R. Civ. P. 26(b)(3). The doctrine generally protects from disclosure in discovery
those documents prepared in anticipation of litigation by or for a party or its representatives,
including its attorneys. Fed. R. Civ. P. 26(b)(3)(A). Such documents need not be produced absent
a showing by the opposing party that it “has a substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their substantial equivalent by other means.” Id. Even
1
The Court notes that the documents consist primarily of email communications and, in many
respects, the attachments to these emails were neither listed on the privilege log nor provided in
camera; thus, the Court assumes copies of the attachments have been provided in discovery.
8
if such a showing has been made, the Court must “protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
“Because a substantial part of an insurance company’s business is to investigate claims made
by an insured against the company ..., it must be presumed that such investigations are part of the
normal business activity of the company and that reports and witness’ statements compiled by or on
behalf of the insurer in the course of such investigations are ordinary business records as
distinguished from trial preparation materials.” Stillwell v. Executive Fund Life Ins. Co., No. 89-A245, 1989 WL 78159, at *3 (D. Colo. July 12, 1989) (quoting Hawkins v. District Court, 638 P.2d
1372, 1378 (Colo. 1982)); see also St. Paul Reinsurance Co., 197 F.R.D. at 636 (“An insurer cannot
shield its entire claims investigation behind the work product privilege simply by hiring an attorney
to perform what is in the ordinary course of the insurer’s business.”).
Thus, when an insurance company contends that documents generated in its investigation
of a claim are protected work product, it has the burden of demonstrating that the documents were
“‘prepared or obtained in order to defend the specific claim which already had arisen and, when the
documents were prepared or obtained, there was a substantial probability of imminent litigation over
the claim, or a lawsuit had already been filed.’” Id. (quoting Hawkins, 638 P.2d at 1379).
“Determining whether anticipated litigation is the driving force behind the preparation of each
requested document is the central inquiry in resolving work product questions.” Smith v. Marten
Transp., Ltd., No. 10-cv-00293-WYD-KMT, 2010 WL 5313537, at *3 (D. Colo. Dec. 17, 2010)
(quoting Wikel v. Wal-Mart Stores, Inc., 197 F.R.D. 493, 495 (N.D. Okla. 2000)).
9
1.
Documents re: Coverage
Defendant contends that it anticipated litigation from nearly the inception of the claim in
December 2010 due to the issues concerning rates and allocation of attorney’s fees. The Court
disagrees; neither the briefing nor the documents produced in camera reveal any indication of the
potential for a lawsuit between the Plaintiff and Defendant before June 30, 2011 concerning whether
Plaintiff’s claim for reimbursement of defense costs would be covered by Defendant. In fact,
Defendant’s representative assigned to Plaintiff’s claim, Susan Shue, testified that she did not
consider Plaintiff’s tender of the claim on December 8, 2010 to be a threat of litigation against
Defendant. Deposition of Susan Shue, March 15, 2013 (“Shue depo”) at 149: 7-15, docket #55-3.
The record reflects that no other “threats” or suggestions of litigation concerning whether Defendant
would cover Plaintiff’s claim and reimburse defense costs pursuant to the policy were tendered by
Plaintiff before June 30, 2011. Therefore, the Court concludes that documents regarding whether
the policy covered Plaintiff’s claim are not protected from disclosure by the work-product doctrine.
See St. Paul Reinsurance Co., 197 F.R.D. at 637 (finding that investigative materials were not
protected, “even if they include mental impressions, conclusions, and opinions of [the attorney
conducting the investigation] regarding the availability of coverage, because these impressions,
conclusions and opinions are part of the pure investigation and evaluation of coverage, not part of
preparation for or anticipation of litigation.”).
2.
Documents re: Rates and Allocation of Attorney’s Fees
However, on April 6, 2011, Plaintiff’s counsel tendered a letter to Sedgwick on behalf of
Defendant challenging Defendant’s position regarding Plaintiff’s counsel’s hourly rates and whether
the law firm was properly selected/approved as counsel to be reimbursed under the policy, as well
10
as Defendant’s position that Plaintiff allocate fees necessary for the prosecution of Plaintiff’s claims
(not to be reimbursed) and fees necessary for Plaintiff’s defense of counterclaims against it (to be
reimbursed). In that letter, Plaintiff argued that Colorado law governing claims for breach of good
faith and fair dealing would support any claims Plaintiff may have concerning these issues.2
Plaintiff demanded a response within five days; “[o]therwise, we will be forced to proceed with an
insurance bad faith claim, along with other tort and contract claims at our disposal against
Philadelphia.” Docket #43-6. The Court construes this letter as a threat of litigation concerning
Plaintiff’s counsel’s rates and Defendant’s requirement to allocate attorney’s fees, and concludes
that documents prepared in anticipation of litigation concerning these issues after April 6, 2011 are
protected by the work-product doctrine.
The next question, then, is whether the Plaintiff has demonstrated a substantial need for the
materials in the preparation of its case and the inability without undue hardship of obtaining the
substantial equivalent of the materials by other means. Martin, 150 F.R.D. at 172-73. First,
however, the Court must note that many documents withheld under this category were also withheld
based upon the attorney-client privilege and are protected on that basis. As for work product,
Defendant redacted the following documents3 falling under this category based only upon the work-
2
Importantly, Plaintiff does not challenge or threaten litigation as to coverage of the claim
under the applicable policy; in fact, Plaintiff states in its April 6, 2011 letter, “it is apparent by your
March 21st letter that you generally admit Philadelphia’s responsibility to reimburse the insurance
defense costs in the arbitration.” Docket #43-6. Certainly, this statement demonstrates that Plaintiff
did not perceive any challenge by Defendant, at that time, to the issue of whether the claim was
covered.
3
Although some of these documents are dated prior to April 6, 2011, it is unclear when the
redacted handwritten notes were made; therefore, because it is possible the notes were made
following receipt of the April 6, 2011 letter, the Court will include the documents in this category.
11
product doctrine: PIIC-CORR0003, 0005, 0011-12, 0035, 0042, 0141 (in part), 0292, 0302 and
0379. As described in the Correspondence File Privilege Log, these documents are letters, emails
or pleadings containing hand-written notes by attorneys, which have been redacted.
Plaintiff argues generally that it has a substantial need for withheld materials dated prior to
June 30, 2011, because they are “essential to demonstrating that Philadelphia conducted its coverage
investigation in bad faith and with undue delay.” Reply, docket #52 at 7. However, the cases
Plaintiff cites do not necessarily support Plaintiff’s position here. For example, in Logan v.
Commercial Union Ins. Co., 96 F.3d 971, 977 (7th Cir. 1996), the court found that “a naked claim
of bad faith cannot, without more, authorize a fishing expedition into privileged communications.
Thus, a mere allegation of bad faith is insufficient to overcome the work product privilege.” The
Logan court asserts that a plaintiff must demonstrate “some likelihood or probability” that the
documents it seeks may contain evidence of bad faith. Id. In Bishelli v. State Farm Mut. Auto. Ins.
Co., No. 07-cv-00385-WYD-MEH, 2008 WL 280850, at *2 (D. Colo. Jan. 31, 2008), this Court
cited Logan and determined that an in camera review was necessary to determine whether the
documents “show the possibility that they contain evidence of bad faith.”
Here, the Court has conducted such review of the unredacted documents listed above, and
concludes they contain no evidence of bad faith on the part of Defendant. As such, the Court finds
that the Plaintiff has failed to demonstrate a substantial need for the challenged documents and
concludes that the documents are not discoverable.
3.
Documents re: Reserves4
4
Defendant also lists on its privilege logs certain documents concerning “invoices” or
“expenses” that are withheld pursuant to the attorney-client and work product privileges. The Court
questions the application of privileges to these documents; however, the Court finds, in the first
12
Defendant contends that, in Colorado, “information regarding reserve information, and
information used to determine reserves and settlement authority, are not relevant and therefore not
discoverable.” Response, docket #43 at 14. Defendant cites Sunahara v. State Farm Mut. Auto. Ins.
Co., 280 P.3d 649 (Colo. 2012) for its contention. However, the facts in Sunahara are materially
different than those in this case and, as set forth in Sunahara, are distinguishable. Like in this case,
the claim in Sunahara was a first-party claim; however, unlike here, the claim was for uninsured
motorist (UIM) benefits. The court likened Sunahara’s claim to a third-party claim in that the “UIM
context of this case ... places the insurance company in the ‘unique role’ of becoming almost
adversarial to its own insured .... As such, the scope of discovery of reserves and settlement authority
in first-party UIM actions is similar to the scope of discovery in third-party actions ..., because the
relationship between the parties is similarly adversarial.” Id. at 657 (citations omitted).
Conversely, as is relevant to this case, the Sunahara court found:
Furthermore, ... reserves and settlement authority – and, under our reasoning in this
case, the liability assessments and fault evaluations underlying those figures as well
– might be relevant and reasonably calculated to lead to admissible evidence when
a first-party plaintiff sues his or her insurance company for bad faith or for a
declaratory judgment. In bad faith and declaratory judgment actions, evidence of
reserves and settlement authority could shed light on whether the insurance company
adjusted a claim in good faith, or promptly investigated, assessed, or settled an
underlying claim.
Id. at 657-58 (citing Silva v. Basin Western, Inc., 47 P.3d 1184, 1193 (Colo. 2002) (“[t]he scope of
discovery has ... been traditionally broader in first-party disputes between an insured party and his
or her insurer. Reserves have been correspondingly more likely to be found discoverable in such
instance, that the Plaintiff fails to make any argument concerning these documents and, thus, fails
to demonstrate they are relevant to this matter. See Martin, 150 F.R.D. at 172-73. The Court
concludes that these documents are not facially relevant and, therefore, need not be produced.
13
actions”)). Here, the Plaintiff brings claims for breach of the covenant of good faith and fair
dealing/insurer bad faith with respect to Defendant’s denial of its first-party claim. Defendant
contends that reserves are intended to satisfy statutory and regulatory requirements and, thus, are
not evidence of an insurer’s valuation of a claim. Response, docket #43 at 15. However, the Court
finds that reserve information may be relevant for the purposes set forth in Sunahara and Silva.
Therefore, the Court concludes that reserve information dated prior to June 30, 2011 in this case is
relevant and discoverable.
III.
Documents to be Produced
In sum, this Court has determined that communications and information dated prior to June
30, 2011 concerning reserve information and whether Plaintiff’s claim for reimbursement of defense
costs is covered under the applicable policy are relevant, but not privileged, and should be disclosed.
However, the Court has also determined that communications and information regarding Plaintiff’s
counsel’s rates, approval of its law firm and allocation of fees between prosecution and defense costs
are protected by the attorney-client privilege and by the work-product privilege as of April 6, 2011,
and are protected from disclosure. Furthermore, the Court finds that reserve information is relevant
and discoverable here, but expense information is not. Based upon these findings, the Court directs
the Defendant to produce the following documents, subject to qualifications as stated in
accompanying footnotes:
CF00149
CF00257-58
CF00164
CF00259-615
CF00185-208
CF00264-666
5
CF00209
CF00301
CF00248-53
CF003027
Produce CF00259 with redactions of the second and third paragraphs of Kelly Nugent’s
March 14, 2011 1:28 email to Sue Shue, and of the third paragraph of Sue Shue’s March 14, 2011
12:32 email to Ann Bronczyk and Kelly Nugent. Produce CF00260 with redactions of the last
sentence in the March 14, 2011 7:22 email from Nugent to Shue, the second paragraph in the
14
CF00314-15
CF00367-7010
CF00316-178
CF00371-7411
CF00319
CF00395-9612
CF00320
CF00397
CF00360-669
CF00401
February 4, 2011 6:45 email from Nugent to “claimmail,” and the last sentence in March 11, 2011
3:33 email from Shue to Nugent. Produce CF00261 with redactions of the entirety of the February
7, 2011 4:30 email from Nugent to Shue and the entirety of the February 7, 2011 15:48 email from
Shue to Nugent.
6
Produce CF00264 with redaction of the last sentence in the March 14, 2011 7:22am email
from Nugent to Shue. Produce CF00265 with redactions of the last sentence in March 11, 2011 3:33
email from Shue to Nugent, the entirety of the February 7, 2011 4:30 email from Nugent to Shue and
the entire content of the February 7, 2011 15:48 email from Shue to Nugent.
7
Produce CF00302 with redactions of the eighth, ninth and tenth sentences of the claim note.
8
Produce CF00316 with redactions of all content of the email message EXCEPT the third
and fourth sentences of the fifth (second to last) paragraph.
9
Produce CF00360 with redaction of the sixth sentence in the June 21,2011 8:10 email from
Shue to Bronczyk. Produce CF00361 with redactions of the second sentence (first on the page) of
the June 20, 2011 7:19 email from Nugent to Shue. Produce CF00362 with redactions of the first
two sentences of the June 17, 2011 1:00 email from Shue to Nugent, and the entire content of the
June 13, 2011 1:09 email from Nugent to Shue (continuing to CF00363). Produce CF00363 with
redactions of the first two paragraphs of the June 7, 2011 2:37 email from Nugent to Shue. Produce
CF00364 with redactions of the entire content of the June 7, 2011 2:17 email from Shue to Nugent.
10
Produce CF00367 with redactions of the first two sentences of the June 17, 2011 1:00 email
from Shue to Nugent. Produce CF00368 with redactions of the entire content of the June 13, 2011
1:09 email from Nugent to Shue, and the first two paragraphs of the June 7, 2011 2:37 email from
Nugent to Shue. Produce CF00369 with redactions of the entire content of the June 7, 2011 2:17
email from Shue to Nugent.
11
Produce CF00371 with redactions of the first two sentences of the June 17, 2011 1:00 email
from Shue to Nugent, and the entire content of the June 13, 2011 1:09 email from Nugent to Shue.
Produce CF00372 with redactions of the first two paragraphs of the June 7, 2011 2:37 email from
Nugent to Shue. Produce CF00373 with redactions of the entire content of the June 7, 2011 2:17
email from Shue to Nugent.
12
Produce CF00395 with redaction of the entire content of the June 21, 2011 8:49 email from
Shue to Nugent. Produce CF00396 with redaction of the fourth paragraph of the June 21, 2011 8:30
email from Nugent to Shue.
15
CF00454-5613
CN00817
CORR0048
CORR0243
CORR0729
CF00458
CN00918
CORR0094
CORR0248
CORR0809
CN00514
CN010
CORR014119
CORR0266-6720
CORR0820
CN00615
CN011
CORR0187
CORR0269
CN00716
CORR0001
CORR0235
CORR0319-20
Defendant shall produce to the Plaintiff copies of these documents, redacted (if applicable) in
accordance with this order, on or before April 16, 2013.
CONCLUSION
Accordingly, for the reasons stated above, it is hereby ORDERED that the Plaintiff’s Motion
to Compel [filed February 21, 2013; docket #27] is granted in part and denied in part as set forth
herein. All requests for attorney’s fees are denied pursuant to Fed. R. Civ. P. 37(a)(5)(C).
13
Produce CF00455 with redactions of the last sentence in March 11, 2011 3:33 email from
Shue to Nugent, the entire content of the February 7, 2011 4:30 email from Nugent to Shue.
Produce CF00456 with redaction of the entire content of the February 7, 2011 15:48 email from
Shue to Nugent.
14
Produce CN005 by removing redactions to claim notes 13 and 14 (may keep other existing
redactions).
15
Produce CN006 by redacting ONLY claim notes 3, 5, 6, 7, 8, and 9.
16
Produce CN007 by redacting ONLY claim notes 1, 2, the last sentence in 6, the eighth,
ninth and tenth sentences of 8, 9 and 11 (continued on CN008).
17
Produce CN008 by redacting ONLY claim notes 1, 2, the third sentence of 3, the first
sentence of 5, 6, 7, and the last two sentences of 11.
18
Produce CN009 by redacting ONLY claim notes 2, 4, and 11.
19
Produce CORR0141 by redacting ONLY the hand-written notes.
20
Produce CORR0266 with redactions of the last sentence in March 11, 2011 3:33 email
from Shue to Nugent, the entire content of the February 7, 2011 4:30 email from Nugent to Shue.
Produce CORR0267 with redaction of the entire content of the February 7, 2011 15:48 email from
Shue to Nugent.
16
Dated at Denver, Colorado, this 2nd day of April, 2013.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
17
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