Menapace v. Alaska National Insurance Company

Filing 108

ORDER RE: DOCUMENTS WITHHELD OR REDACTED BY DEFENDANT PURSUANT TO ATTORNEY-CLIENT PRIVILEGE AND/OR WORK PRODUCT by Magistrate Judge Scott T. Varholak on 15 October 2020. (Attachments: # 1 Appendix A) (cmadr, )

APPENDIX A
ORDER RE: DOCUMENTS WITHHELD AND/OR REDACTED BY DEFENDANT
PURSUANT TO ATTORNEY-CLIENT PRIVILEGE AND/OR WORK PRODUCT
Darin Menapace v. Alaska National Insurance Company
Civil Action No. 20-cv-00053-REB-STV
Bates No./
Document
Doc. ID*
Date
Memorandum 01/08/2020
from HMR to
Keith Olivera,
with
attachments
(56 pages)

AN_000416

07/25/2017

Basis Claimed
for Withholding
attorney-client
privilege; WorkProduct
Doctrine

attorney-client
privilege

Court’s Ruling
The Court finds that this memorandum is properly withheld pursuant to the
attorney-client privilege and the work product doctrine. The memorandum
provides specific legal advice regarding Plaintiff’s insurance claim and thus
is entitled to attorney-client privilege protection. Because the instant
memorandum does not include a discussion of the factual information Mr.
Olivera gathered while acting in the role of a claims adjuster, the Court finds
that the entirety of the memorandum is privileged. See Nat’l Farmers, 718
P.2d at 1049 (concluding that privilege did not apply to first portion of
memorandum addressing factual investigation but did apply to “portion . . .
which contain[ed] legal conclusions”). Given the nature of the document
and that it was created after this litigation was commenced, the Court finds
that the memorandum also is protected by the work product doctrine.
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The communication, which was authored by an inhouse counsel for Defendant, provides legal advice regarding Plaintiff’s
claim, and also provides information to Mr. Olivera to assist in his ability to
provide legal advice. Moreover, there is no indication in the record, as of
July 25, 2017, that Mr. Olivera was acting in the role of a claims adjuster
rather than as an attorney. [See #51-1 at 41 (7/02/2018 email from Mr. Millar
informing Ms. Anzalone that Defendant “h[as] retained Keith Olivera in
Denver to work with you to get the EUO and any IME promptly completed”)]

* For purposes of the instant Appendix, the Court has abbreviated the Bates number prefix “AlaskaNational” as “AN.”

Bates No./
Doc. ID*
AN_000415

Document
Date
07/25/2017

Basis Claimed
for Withholding
attorney-client
privilege

AN_000413

08/29/2017

attorney-client
privilege

AN_000413

09/05/2017

attorney-client
privilege

Court’s Ruling
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. In the communication, an in-house counsel for
Defendant makes a specific request for legal advice from Mr. Olivera
related to Plaintiff’s claim and provides information to assist in providing
that advice. Moreover, there is no indication in the record, as of July 25,
2017, that Mr. Olivera was acting in the role of a claims adjuster rather than
as an attorney. [See #51-1 at 41 (7/02/2018 email from Mr. Millar informing
Ms. Anzalone that Defendant “h[as] retained Keith Olivera in Denver to
work with you to get the EUO and any IME promptly completed”)]
The Court finds that this claim note is not protected by the attorney-client
privilege and thus should be PRODUCED. The communication does not
disclose either a request for legal advice or the provision of legal advice but
instead is administrative in nature. Because the attorney-client privilege
protects only the substance of the communication between counsel and
client and not the fact that such communication took place, the privilege
does not attach to communications that “reflect the scheduling of a
telephone call or conference, with no hint of the topic(s) to be discussed
and no legal advice requested or given.” Plaza, 2015 WL 3528336, at *6
(collecting cases). At most, the communication indicates that a prior
request for legal advice was made. See Sterling Const. Mgmt., LLC v.
Steadfast Ins. Co., No. 09-CV-02224-MSK-MJW, 2011 WL 3903074, at *13
(D. Colo. Sept. 6, 2011) (finding that document did not relate “to legal
advice or strategy” where it did “little more than memorialize that a
transmission of information occurred”).
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. In the communication, Mr. Olivera provides
specific legal advice to Defendant and requests additional information to
assist in providing further advice. Moreover, there is no indication in the
record, as of September 5, 2017, that Mr. Olivera was acting in the role of
a claims adjuster rather than as an attorney. [See #51-1 at 41 (7/02/2018
email from Mr. Millar informing Ms. Anzalone that Defendant “h[as] retained

Bates No./
Doc. ID*

Document
Date

Basis Claimed
for Withholding

AN_000413

09/05/2017

attorney-client
privilege

AN_000412

09/06/2017

attorney-client
privilege

AN_000410

11/08/2017

attorney-client
privilege

Court’s Ruling
Keith Olivera in Denver to work with you to get the EUO and any IME
promptly completed”)]
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. In the communication, Mr. Millar provides Mr.
Olivera additional information specifically requested by Mr. Olivera to assist
him in providing further advice. Moreover, there is no indication in the
record, as of September 5, 2017, that Mr. Olivera was acting in the role of
a claims adjuster rather than as an attorney. [See #51-1 at 41 (7/02/2018
email from Mr. Millar informing Ms. Anzalone that Defendant “h[as] retained
Keith Olivera in Denver to work with you to get the EUO and any IME
promptly completed”)]
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The claim note reflects communications in which
Mr. Olivera provides specific legal advice and requests additional
information to assist in providing further advice, and Mr. Millar responds
with additional information and a request for additional legal advice.
Moreover, there is no indication in the record, as of September 6, 2017,
that Mr. Olivera was acting in the role of a claims adjuster rather than as an
attorney. [See #51-1 at 41 (7/02/2018 email from Mr. Millar informing Ms.
Anzalone that Defendant “h[as] retained Keith Olivera in Denver to work
with you to get the EUO and any IME promptly completed”)]
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The claim note reflects communications in which
Mr. Millar appears to request legal advice from Mr. Olivera and provides
information for the purpose of obtaining that advice. Although the request
for legal advice is not specific, the Court notes that at this point, all of
Defendant’s communications with Mr. Olivera have related to requests for
legal advice and there is no indication in the record, as of November 8,
2017, that Mr. Olivera was acting in the role of a claims adjuster rather than
as an attorney. [See #51-1 at 41 (7/02/2018 email from Mr. Millar informing
Ms. Anzalone that Defendant “h[as] retained Keith Olivera in Denver to

Bates No./
Doc. ID*

Document
Date

Basis Claimed
for Withholding

AN_000410

11/09/2017

attorney-client
privilege

AN_000406

06/25/2018

attorney-client
privilege;
WorkProduct
Doctrine

1

Court’s Ruling
work with you to get the EUO and any IME promptly completed”)]
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege.
The claim note includes a summary of
communications with Mr. Olvera regarding legal advice. Moreover, there
is no indication in the record, as of November 9, 2017, that Mr. Olivera was
acting in the role of a claims adjuster rather than as an attorney. [See #511 at 41 (7/02/2018 email from Mr. Millar informing Ms. Anzalone that
Defendant “h[as] retained Keith Olivera in Denver to work with you to get
the EUO and any IME promptly completed”)]
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED with
the exception of the two sentences described below that are properly
withheld on the basis of the attorney-client privilege. Although Mr. Olivera
testifies that Mr. Millar contacted him on June 25, 2018, “seeking legal
advice regarding responding to a demand . . . consistent with Colorado law”
[#51-3, ¶ 11(j)], he does not identify a specific communication and the email
from Mr. Millar reflected in the instant claim note does not specifically
request any legal advice. Moreover, Mr. Olivera’s response makes clear
that his role is no longer limited to providing specific legal advice but rather
has expanded to activities associated with the adjustment of the claim, such
as determining what information is necessary to evaluate the claim (without
explicit or implicit reference to the requirements of Colorado law) and
drafting a response to the demand. Notably, Mr. Olivera does not provide
legal advice regarding the requirements for adjusting a claim or responding
to a demand under Colorado law but rather makes clear that he will actively
participate in the actual performance of the ordinary claims adjusting
activities. In its privilege log, Defendant asserts privilege because the note
allegedly reflects “legal advice regarding Colo. Rev. Stat. §§ 10-3-1115,
1116.” 1 The Court finds that only the last two sentences of Mr. Olivera’s

In addition, the Court notes that the redacted portion of the claim note includes information regarding Mr. Olivera’s firm’s billing practices

Bates No./
Doc. ID*

AN_000405

Document
Date

06/26/2018

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
response—beginning with “As we have discussed” and ending with
“claim”—relate to that advice; those two sentences thus are attorney-client
privileged and may remain redacted. Defendant, however, has failed to
sustain its burden of demonstrating that the remainder of the claim note
relates to the provision of legal advice rather than Mr. Olivera’s claims
adjustment activities. For the reasons explained in the Order, the Court
finds that Defendant has not demonstrated that it reasonably anticipated
litigation prior to October 4, 2019 at the earliest and thus this document is
not entitled to work product protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects
communications “regarding valuing a claim under Colorado law.” The claim
note, however, does not reference any information regarding the
requirements for valuing a claim under Colorado law. Although Mr. Olivera
testifies that he had a telephone call with Mr. Millar on June 26, 2018 in
which he “provided legal advice regarding valuing a UIM claim under
Colorado law” [#51-3, ¶ 11(k)], it is unclear whether this claim note relates
to that conversation as the declaration does not specifically reference the
claim note and the claims note does not mention any such advice. 2
Instead, the claim note appears only to reference the ordinary claims
activities of valuing the insurance claim and determining what information
is needed to do so. Defendant thus has failed to sustain its burden of
demonstrating that the claim note relates to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities. For
the reasons explained in the Order, the Court finds that Defendant has not

and rates that is not protected by the attorney-client privilege. See Wesp, 33 P.3d at 199 n.15 (“[A]n attorney generally may not refuse to
answer questions about the identity of a client and fee arrangements”); Lee v. State Farm Mut. Auto. Ins. Co., 249 F.R.D. 662, 684 (D.
Colo. 2008) (“[B]illing records are not accorded privileged status unless specific entries contain privileged communications.”).
2
To the extent Mr. Olivera’s testimony does relate to this claim note, because the claim note does not mention any request for legal
advice, production of the claim note would not reveal any such legal advice discussed during the call.

Bates No./
Doc. ID*

Document
Date

AN_000405

06/28/2018

AN_000404 4

6/29/2018

3

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
communication “providing facts necessary for attorney to provide legal
advice regarding the requirements of Colorado law.” Neither the claim
note, nor any of the surrounding documents, however, reference any legal
advice regarding the requirements of Colorado law with respect to the
information provided. 3 Instead, Mr. Millar appears to be providing the
information to facilitate Mr. Olivera’s involvement in performing the ordinary
claims activities of valuing the insurance claim and determining what
information is needed to do so. Defendant thus has failed to sustain its
burden of demonstrating that the claim note relates to the provision of legal
advice rather than Mr. Olivera’s involvement in claims adjustment activities.
For the reasons explained in the Order, the Court finds that Defendant has
not demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court takes no position regarding the propriety of Defendant’s
redaction of “reserves” information in this claim note because Plaintiff has
not raised a challenge specific to that redaction.

Mr. Olivera’s conclusory testimony that Mr. Millar provided him “information that was necessary for providing legal advice regarding the
requirements of Colorado law” thus also is unavailing. [#51-3, ¶ 11(l)] Moreover, as explained in the Order, Defendant cannot shroud all
of Mr. Olivera’s communications related to the adjustment of Plaintiff’s claim with the protections of the privilege merely because his
involvement was, in part, for the purpose of obtaining legal advice.
4
No entry for this redaction was included on the version of Defendant’s privilege log submitted to the Court.

Bates No./
Doc. ID*
AN_000399

5

Document
Date
08/24/2018

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects Mr.
Olivera’s “opinions on preparing for anticipated litigation.” The claim note,
however, does not reference any anticipated litigation. Nor does the claim
note include any reference to legal advice provided by—or requested
from—Mr. Olivera; there is no reference to the legal requirements for
adjusting a claim under Colorado law. 5 Instead, the claim note summarizes
a telephone conversation in which Mr. Olivera relayed the information
obtained during the EUO (which it appears no other representative of
Defendant attended) and discusses what additional information was
needed to adjust the claim. An insurer cannot avail itself of the protections
of the attorney-client privilege for all information obtained during an EUO
merely by delegating that ordinary business activity to an attorney and thus
Mr. Olivera’s report of the information he obtained during that EUO—
including his perceptions of the witness—are not attorney-client privileged.
See Ivan, 2018 WL 11182728, at *2 (finding that insurer’s outside counsel
“was not acting in its role as counsel when it provided a detailed factual
summary of . . . medical records” to insurer); Sterling Const. Mgmt., LLC,
2011 WL 3903074, at *15 (“Where an attorney is acting as a conduit for
non-confidential information, the client may not invoke attorney-client
privilege with regard to that communication.”). Defendant thus has failed to
sustain its burden of demonstrating that the claim note relates to the
provision of legal advice rather than Mr. Olivera’s involvement in claims
adjustment activities. For the reasons explained in the Order, the Court
finds that Defendant has not demonstrated that it reasonably anticipated
litigation prior to October 4, 2019 at the earliest and thus this document is

Thus, even if Mr. Olivera did provide legal advice regarding the requirements for adjusting a claim under Colorado law and/or his opinions
regarding preparing for litigation, as indicated in his declaration [#51-3, ¶ 11(n)], those discussions do not appear to be summarized in
the claim note and thus the claim note is not privileged.

Bates No./
Doc. ID*

Document
Date

AN_000398 6

6

8/31/2018

AN_000397

10/22/2018

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
not entitled to work product protection.
The Court takes no position regarding the propriety of Defendant’s
redaction of “reserves” information in this claim note because Plaintiff has
not raised a challenge specific to that redaction.
The Court finds that the claim note is not work product and only one
sentence of the redacted claim note is protected by the attorney-client
privilege and thus the remaining non-privileged portions should be
PRODUCED. In the privilege log, Defendant contends that this claim note
reflects Mr. Olivera’s “legal advice regarding Colo. Rev. Stat. §§ 10-3-1115,
1116.” The Court finds that only one sentence—the sentence starting with
“I know”—relates to the provision of legal advice and thus is entitled to
attorney-client privilege protection. The remainder of the claim note merely
relays information obtained by Mr. Olivera in his communications with Ms.
Anzalone and thus relates to Mr. Olivera’s performance of claims adjusting
activities. With the exception of the sentence that begins “I know,”
Defendant thus has failed to sustain its burden of demonstrating that the
claim note relates to the provision of legal advice rather than Mr. Olivera’s
involvement in claims adjustment activities. 7 For the reasons explained in
the Order, the Court finds that Defendant has not demonstrated that it
reasonably anticipated litigation prior to October 4, 2019 at the earliest and
thus this document is not entitled to work product protection.

No entry for this redaction was included on the version of Defendant’s privilege log submitted to the Court.
The Court’s finding is consistent with Mr. Olivera’s testimony that he “emailed [Mr.] Millar and provided legal advice regarding
Colo. Rev. Stat. §§ 10-3-1115, 1116 and adjusting the claim consistent with these statutes” [#51-3, ¶ 11(p)]. The fact that one
sentence of Mr. Olivera’s email conveyed legal advice does not entitle the entire email to attorney-client privilege, especially
here where Mr. Olivera was performing claims adjustment tasks in addition to providing legal advice.
7

Bates No./
Doc. ID*
AN_000396

Document
Date
11/06/2018

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

AN_000393

1/15/2019

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
“confidential invoice [that] was submitted to [Defendant].” Defendant does
not identify the allegedly confidential information and none is apparent to
the Court. Instead, the communication appears administrative in nature
and, at most, reveals that counsel sent an invoice to Defendant on a certain
date. As such, Defendant has not satisfied its burden of establishing that
the communication is privileged. See Plaza, 2015 WL 3528336, at *6
(collecting cases holding that communications regarding administrative
matters are not attorney-client privileged); Lee, 249 F.R.D. at 684 (“[B]illing
records are not accorded privileged status unless specific entries contain
privileged communications.”). For the reasons explained in the Order, the
Court finds that Defendant has not demonstrated that it reasonably
anticipated litigation prior to October 4, 2019 at the earliest and thus this
document is not entitled to work product protection.
The Court finds that the claim note is not work product and only half of the
redacted sentence in the claim note is protected by the attorney-client
privilege and thus the remaining portion of that sentence should be
PRODUCED. In the privilege log, Defendant contends that the redacted
sentence reflects Mr. Olivera’s advice “regarding proceeding with the UIM
claim consistent with the requirements of Colorado law.” The Court finds
that only the second half of that sentence—beginning with “and”—appears
to relate to the provision of legal advice and thus is entitled to attorneyclient privilege protection. Defendant has not offered any evidence that the
remaining portion of the sentence reflects legal advice obtained from Mr.
Olivera as distinguished from information Mr. Olivera may have provided in
performing activities associated with adjusting the claim and such a
distinction is not clear from the face of the document or the surrounding
facts. Indeed, the phrasing of this first part of the sentence indicates that
the information results from a determination made by Defendant.

Bates No./
Doc. ID*

AN_000370

Document
Date

01/29/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
Defendant thus has failed to sustain its burden of demonstrating that the
first portion of the redacted sentence relates to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities. For
the reasons explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects Mr.
Olivera’s “legal advice regarding proceeding with the UIM claim consistent
with the requirements of Colorado law.” The claim note, however, does not
include any legal advice and makes no reference to the requirements for
adjusting a claim under Colorado law. In his declaration, Mr. Olivera
contends that he sent this communication “to address a communication
from opposing counsel, potential developments in the claim, the potential
outcome of certain parts of the investigation, and the type of further
information or investigation” that would be needed. [#51-3, ¶ 11(r)] There
are all issues related to the adjustment of the claim typically performed by
a claims adjuster. See Ivan, 2018 WL 11182728, at *2 (finding that
insurer’s outside counsel “was not acting in its role as counsel when it
provided a detailed factual summary of . . . medical records” to insurer);
Sterling Const. Mgmt., LLC, 2011 WL 3903074, at *15 (“Where an attorney
is acting as a conduit for non-confidential information, the client may not
invoke attorney-client privilege with regard to that communication.”).
Although Mr. Olivera contends that another purpose of the email was to
discuss “further information [he] would need . . . in order to provide further
legal advice regarding compliance with the requirements of Colorado law”
[#51-3, ¶ 11(r)] , that is not apparent from the claim note or the surrounding
contemporaneous documentation. Instead, it appears that the further
information was necessary for Defendant to complete its evaluation of the

Bates No./
Doc. ID*

AN_000367

8

Document
Date

04/02/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
claim. [See, e.g., #53-4 at 6-11 (communications between Mr. Olivera and
Ms. Anzalone regarding Defendant’s requests for information and an
independent review of the medical records); AN_000369 (2/07/2019
unredacted email from in-house counsel to Mr. Millar requesting that he
“follow up with [Mr. Olivera about getting” medical records)] Defendant thus
has failed to sustain its burden of demonstrating that the claim note relates
to the provision of legal advice rather than Mr. Olivera’s involvement in
claims adjustment activities. For the reasons explained in the Order, the
Court finds that Defendant has not demonstrated that it reasonably
anticipated litigation prior to October 4, 2019 at the earliest and thus this
document is not entitled to work product protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
“summary of information and advice [Defendant] sought from defense
counsel regarding proceeding with the UIM claim consistent with the
requirements of Colorado law.” The claim note, however, does not
reference any legal advice or request for legal advice. Instead, the
communication relates to the status of the claim and a request that Mr.
Olivera obtain additional information from Plaintiff and potentially others.8
There is no indication in the claim note or the surrounding
contemporaneous documentation that the additional information was being
sought for purposes of obtaining legal advice. Instead, it appears that the
further information was necessary for Defendant to complete its evaluation
of the claim. [See, e.g., #53-4 at 6-11 (communications between Mr.
Olivera and Ms. Anzalone regarding Defendant’s requests for information

Although Mr. Olivera contends that Mr. Millar “contacted [him] to obtain [his] legal advice and legal assistance given that certain
information expected on the claim had not yet been received” [#51-3, ¶ 11(s)], there is no request for legal advice or legal assistance in
the email. Instead, it appears clear that Mr. Millar is reaching out to Mr. Olivera with regard to the “information expected on the claim”
because Defendant had made Mr. Olivera “the primary point of contact for Plaintiff’s counsel” [#51 at 34]—a role typically performed by
a claims adjuster.

Bates No./
Doc. ID*

AN_000364AN_000366

9

Document
Date

04/02/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
and an independent review of the medical records); AN_000369 (2/07/2019
unredacted email from in-house counsel to Mr. Millar requesting that he
“follow up with [Mr. Olivera about getting” medical records)] Defendant thus
has failed to sustain its burden of demonstrating that the claim note relates
to the provision of legal advice rather than Mr. Olivera’s involvement in
claims adjustment activities. For the reasons explained in the Order, the
Court finds that Defendant has not demonstrated that it reasonably
anticipated litigation prior to October 4, 2019 at the earliest and thus this
document is not entitled to work product protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note includes
“communications regarding information necessary for defense counsel to
provide legal advice to Alaska National regarding proceeding with the UIM
claim consistent with the requirements of Colorado law.” The claim note,
however, does not reference any legal advice or request for legal advice.
Instead, the communication (which is a chain of emails that includes the
email contained in the 4/02/2019 claim note Bates-numbered AN_000367
addressed above) relates to the status of the claim and obtaining additional
information from Plaintiff and potentially others. There is no indication in
the claim note or the surrounding contemporaneous documentation that the
additional information was being sought for purposes of obtaining legal
advice. Although Mr. Olivera testifies that he “requested further information
that [he] needed to provide legal advice regarding the payments made to
[Plaintiff] on his multiple claims,” [#53-3, ¶ 11(s)], Defendant has not
provided adequate evidence that this information was sought for the
purpose of providing legal advice as distinguished from determining the
value of Plaintiff’s claim. 9 Defendant thus has failed to sustain its burden

Although Mr. Olivera testifies that the information was “needed to provide legal advice” [#53-3, ¶ 11(s)], this self-serving and conclusory
statement standing alone is insufficient to establish that the communication at issue related to the provision of legal advice and not to the

Bates No./
Doc. ID*

AN_000339

Document
Date

04/05/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
of demonstrating that the claim note relates to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities. For
the reasons explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
“summary of . . . communications” relating Mr. Olivera’s “advice and
opinions on how to proceed on the claim consistent with the requirements
of Colorado law.” The claim note, however, is the summary of a single call
between Mr. Olivera and Mr. Millar regarding information requested from
Plaintiff. 10 The claim note does not reference any legal advice or request
for legal advice. There is no indication in the claim note or the surrounding
contemporaneous documentation that the additional information was being
sought for purposes of obtaining legal advice. [See, e.g., #53-4 at 6-11

adjustment of Plaintiff’s claim. As an initial matter, Mr. Olivera contends that all of his activities related to the provision of legal advice [id.
at ¶ 7]—a contention which the Court has rejected as explained in the Order—and Mr. Olivera’s declaration thus makes no attempt to
distinguish between communications related to providing legal advice and those related to his activities undertaken for the purpose of
investigating and evaluating the claim. With regard to the specific request in this email, it is unclear to the Court why Mr. Olivera would
need to know the amounts of the payments—as distinguished from the types of payments—to render legal advice on the requirements of
Colorado law. Instead, it would appear that the request was made for the purpose of determining the value of Plaintiff’s UIM claim—a
task typically performed by the claims adjuster. This is consistent with the remainder of the email chain, which relates to obtaining
additional information from Plaintiff’s counsel—a task clearly related to the adjustment of the claim for which Mr. Olivera took primary
responsibility.
10
In his declaration, Mr. Olivera testifies that he had a telephone conversation with Mr. Millar on April 5, 2019 in which he “provide[d] . . .
legal advice . . . regarding how it should comply with Colorado law . . .” [#53-3, ¶ 11(t)] Because Mr. Olivera’s declaration does not
identify any specific document to which it refers, it is unclear whether the claim note at issue relates to this same phone conversation.
Even if it is, however, the claim note does not reveal—or even refer to—any discussion regarding legal advice or the requirements of
Colorado law and thus the claim note is not privileged.

Bates No./
Doc. ID*

AN_000312AN_000313

Document
Date

05/28/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
(communications between Mr. Olivera and Ms. Anzalone regarding
Defendant’s requests for information and an independent review of the
medical records); AN_000339 (4/22/2019 claim note stating “[f]ile is
pending review of recent MRI of clmt’s knee”)] Defendant thus has failed
to sustain its burden of demonstrating that the claim note relates to the
provision of legal advice rather than Mr. Olivera’s involvement in claims
adjustment activities. For the reasons explained in the Order, the Court
finds that Defendant has not demonstrated that it reasonably anticipated
litigation prior to October 4, 2019 at the earliest and thus this document is
not entitled to work product protection.
The Court finds that the claim note is not work product and only the first of
the two emails redacted in the claim note is protected by the attorney-client
privilege and thus the second email should be PRODUCED. In the privilege
log, Defendant contends that the claim note was redacted to remove “legal
advice regarding recent developments in Colorado law.” The Court agrees
with Defendant that the first email in the claim note from Mr. Olivera to Mr.
Millar reflects Mr. Olivera’s legal advice and thus is properly withheld. [See
#51-3, ¶ 11(u) (Mr. Olivera’s testimony regarding 5/28/2019 email to Mr.
Millar regarding recent developments in Colorado law)] The second email
that was redacted, however, does not refer to or request legal advice.
Instead, the email merely requests information on the status of Plaintiff’s
claim. Given that Defendant made Mr. Olivera the primary point of contact
for Plaintiff’s counsel, the Court does not understand this email to request
legal advice. Defendant thus has failed to sustain its burden of
demonstrating that the second email in the redacted claim note relates to
the provision of legal advice rather than Mr. Olivera’s involvement in claims
adjustment activities. For the reasons explained in the Order, the Court
finds that Defendant has not demonstrated that it reasonably anticipated
litigation prior to October 4, 2019 at the earliest and thus this document is
not entitled to work product protection.

Bates No./
Doc. ID*
AN_000312

Document
Date
06/03/2019

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

AN_000284

06/05/2019

attorney-client
privilege;
WorkProduct
Doctrine

AN_000255AN_000256

06/06/2019

attorney-client
privilege;
WorkProduct
Doctrine

11

Court’s Ruling
The Court finds that the claim note is not work product but that the claim
note is properly withheld pursuant to the attorney-client privilege. The claim
note summarizes specific legal advice provided to Defendant by outside
counsel and thus is protected by the attorney-client privilege. [See #51-3,
¶ 11(v) (Mr. Olivera’s testimony regarding 6/03/2019 telephone call with Mr.
Millar regarding recent developments in Colorado law)] For the reasons
explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court finds that the claim note is not work product but that the claim
note is properly withheld pursuant to the attorney-client privilege. The
redacted portion of the claim note summarizes specific legal advice
provided to Defendant by outside counsel and thus is protected by the
attorney-client privilege. [See AN_000312; #51-3, ¶ 11(v)] For the reasons
explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
communication regarding “the information that was necessary to provide
legal advice.” The claim note, however, does not reference any legal
advice or request for legal advice. There is no indication in the claim note
or the surrounding contemporaneous documentation that the additional
information was being sought for purposes of obtaining legal advice. 11

Mr. Olivera testifies that he exchanged emails with Mr. Millar on June 5, 2019—which is the date of the emails contained in
this claim note dated June 6, 2019— to “provide[ ] advice and information in light of then-recent case law governing how an
insurer determines reasonable amounts that may be recovered on a UM/UIM claim.” [#53-1, ¶ 11(w)] Because Mr. Olivera’s

Bates No./
Doc. ID*

AN_000255

Document
Date

06/21/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
Instead, it appears that the further information was necessary for Defendant
to complete its evaluation of the claim. [See AN_000257-58 (6/05/2019
email from Mr. Olivera to Ms. Anzalone thanking her for providing the new
medical records and stating that he will follow-up “once [Defendant] has
had a chance to review and analyze this medical information”)] Defendant
thus has failed to sustain its burden of demonstrating that the claim note
relates to the provision of legal advice rather than Mr. Olivera’s involvement
in claims adjustment activities. For the reasons explained in the Order, the
Court finds that Defendant has not demonstrated that it reasonably
anticipated litigation prior to October 4, 2019 at the earliest and thus this
document is not entitled to work product protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
communication regarding “proceeding with the claim in a manner
consistent with the requirements of Colorado law.” The claim note,
however, does not reference any legal advice or request for legal advice or
the requirements of Colorado law. Instead, the claim note relates to a
communication discussing the need for additional information and there is
no indication in the claim note or the surrounding contemporaneous
documentation that the additional information was being sought for
purposes of obtaining legal advice. Rather, it appears that the further
information was necessary for Defendant to complete its evaluation of the
claim. [See #53-4 at 6-7 (6/28/2018 email from Mr. Olivera to Ms. Anzalone
stating that Defendant “will not be able to complete its updated evaluation
of [Plaintiff’s] claim” until it retains a different orthopedic surgeon to review
medical records] Defendant thus has failed to sustain its burden of

declaration does not identify any specific document to which it refers, it is unclear whether the claim note at issue relates to
this same email exchange. Even if it is, however, the claim note does not reveal—or even refer to—any legal advice or recent
case law developments but instead relates to obtaining medical information for the evaluation of Plaintiff’s claim.

Bates No./
Doc. ID*

AN_000255

Document
Date

06/21/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
demonstrating that the claim note relates to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities. For
the reasons explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
communication regarding “proceeding with the claim in a manner
consistent with the requirements of Colorado law.” The claim note,
however, does not reference any legal advice or request for legal advice or
the requirements of Colorado law. Instead, the claim note relates to a
communication discussing the need for additional information and there is
no indication in the claim note or the surrounding contemporaneous
documentation that the additional information was being sought for
purposes of obtaining legal advice. Rather, it appears that the further
information was necessary for Defendant to complete its evaluation of the
claim. [See #53-4 at 6-7 (6/28/2018 email from Mr. Olivera to Ms. Anzalone
stating that Defendant “will not be able to complete its updated evaluation
of [Plaintiff’s] claim” until it retains a different orthopedic surgeon to review
medical records]
Defendant thus has failed to sustain its burden of
demonstrating that the claim note relates to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities. For
the reasons explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.

Bates No./
Doc. ID*
AN_000254

12

Document
Date
06/25/2019
to
06/26/2019

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
The Court finds that this claim note is not protected by the attorney-client
privilege or the work product doctrine and thus should be PRODUCED. In
the privilege log, Defendant contends that this claim note reflects a
communication regarding “proceeding with the claim in a manner
consistent with the requirements of Colorado law.” The claim note,
however, does not reference any legal advice or request for legal advice or
the requirements of Colorado law. Instead, the claim note relates to a
communication discussing the need for additional information and there is
no indication in the claim note or the surrounding contemporaneous
documentation that the additional information was being sought for
purposes of obtaining legal advice. 12 Rather, it appears that the further
information was necessary for Defendant to complete its evaluation of the
claim. [See #53-4 at 6-7 (6/28/2018 email from Mr. Olivera to Ms. Anzalone
stating that Defendant “will not be able to complete its updated evaluation
of [Plaintiff’s] claim” until it retains a different orthopedic surgeon to review
medical records]
Defendant thus has failed to sustain its burden of
demonstrating that the claim note relates to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities. For

In his declaration, Mr. Olivera testifies that he exchanged emails with Mr. Millar on June 25, 2019 “regarding information necessary for
[him] to provide legal advice.” [#53-3, ¶ 11(y)] Mr. Olivera acknowledges, however, that the subject matter of the communications was
“a development pertaining to an expert who had been consulted on the file.” [Id.] This development was disclosed to Plaintiff and
Defendant—through Mr. Olivera—represented to Plaintiff that the expert’s opinion was needed to evaluate the medical records Plaintiff
had recently provided, seemingly for purposes of evaluating the claim. [#53-4 at 6-7] It thus appears that the purpose of the
communications referenced in the claim note was the evaluation of Plaintiff’s claim, not the provision of legal advice. Notably, Defendant
did not redact the claim note summarizing the subsequent call between Mr. Millar, Mr. Olivera, and the expert discussing the expert’s
opinion. [AN_000248 (7/25/2019 claim note)] Although Mr. Olivera testifies that he “gave [his] legal advice regarding how Colorado law
governing insurance claims encouraged the company to respond to [the] development” regarding the expert” [#53-3, ¶ 11(y)], because
Mr. Olivera’s declaration does not identify any specific document to which it refers, it is unclear whether the claim note at issue is the one
referred to in Mr. Olivera’s testimony. To the extent it is, the redacted email does not mention any requirement under Colorado law and
the Court cannot discern any legal advice included in the email. Instead, it appears only to include information related to the adjustment
of Plaintiff’s claim that would ordinarily be handled by a claims adjuster.

Bates No./
Doc. ID*

Document
Date

Basis Claimed
for Withholding

Court’s Ruling
the reasons explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.

AN_000212

13

10/01/2019

attorney-client
privilege;
WorkProduct
Doctrine

The Court finds that the claim note is not work product and only a portion
of the redacted claim note is protected by the attorney-client privilege and
that the remainder of the claim note should be PRODUCED. In the privilege
log, Defendant contends that the claim note was redacted to remove a
“communication providing legal advice on Colorado law and its application
to Plaintiff’s UIM policy and claim.” The Court agrees with Defendant that
a portion of one sentence—beginning with “a memo” and ending with
“and”—in the claim note reflects the advice of counsel and thus is properly
redacted. The remainder of the claim note, however, does not refer to or
request legal advice. Instead, it relates to communicating with Plaintiff’s
counsel—a task typically performed by a claims adjuster that Defendant
delegated to Mr. Olivera. [See #51 at 34 (acknowledging that Mr. Olivera
“replace[d] Mr. Millar as the primary point of contact for Plaintiff’s counsel”)]
Notably, there is no testimony from Mr. Olivera that the draft document
referenced in that portion of the claim note contained legal advice and,
given the nature of the draft document, it seems unlikely to the Court that it
would have contained confidential legal advice. 13 Defendant thus has
failed to sustain its burden of demonstrating that the remainder of the
redacted claim note relates to the provision of legal advice rather than Mr.
Olivera’s involvement in claims adjustment activities. For the reasons

Mr. Olivera testifies only that, on September 27, 2019 (the date of the email contained in the claim note), he “sent an email to and had
a phone conversation with [Mr.] Millar regarding Colorado Law and the handling of [Plaintiff’s] claim.” [#51-3, ¶ 11(dd)] The Court further
notes that the attachments referenced in the communication described in the claim note are not included on Defendant’s Privilege Log
and have not been submitted to the Court for in camera review. To the extent they are not included because they have been produced
to Plaintiff, any privilege with regard to this claim note may be waived, but that issue has not been presented to the Court.

Bates No./
Doc. ID*

AN_000201

Document
Date

10/07/2019

attorney-client
privilege;
WorkProduct
Doctrine

10/16/2019

attorney-client
privilege;
WorkProduct
Doctrine

AN_000205AN_000206
AN_000209
AN_000193AN_000194
AN_000200
AN_000205
AN_000208AN_000209
AN_000211

Basis Claimed
for Withholding

Court’s Ruling
explained in the Order, the Court finds that Defendant has not
demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this document is not entitled to work product
protection.
Based upon the documents submitted to the Court for in camera review, it
does not appear that Defendant redacted or otherwise withheld the
communication referenced in these entries. To the extent they have been
withheld, the Court finds that they should be PRODUCED for the same
reasons the Court finds the communications in the next entries (AN_000193AN_000194, et al.) should be produced.
The Court finds that these claim notes are not protected by the attorneyclient privilege or the work product doctrine and thus should be
PRODUCED. In the privilege log, Defendant contends that these claim
notes reflect “communications regarding proceeding on the UIM claim in a
manner consistent with Colorado law.” The claim notes, however, make no
reference to the legal requirements for adjusting a claim under Colorado
law.
Instead, the redacted emails relate only to the status of
communications with Plaintiff’s counsel. Given that Defendant made Mr.
Olivera the primary point of contact for Plaintiff’s counsel—a role ordinarily
performed by a claims adjuster, the Court does not understand these
emails to request or relate to legal advice and they are not entitled to
attorney-client privilege protection. See Sterling Const. Mgmt., LLC, 2011
WL 3903074, at *15 (“Where an attorney is acting as a conduit for nonconfidential information, the client may not invoke attorney-client privilege
with regard to that communication.”). Although the communications were
prepared at a time when Defendant may have reasonably anticipated
litigation, Defendant has not shown that such anticipated litigation was “the
driving force behind the preparation” of the communications, nor is that
apparent from the face of the documents. Colorado Mills, 2013 WL
1340649, at *6. Accordingly, the documents are not entitled to protection
under the work product doctrine.

Bates No./
Doc. ID*
AN_000193 14

Document
Date
10/28/2019

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

11/11/2019

attorney-client
privilege;
WorkProduct
Doctrine

AN_000199AN_000200
AN_000208
AN_000210

AN_000192
AN_000198AN_000199

Court’s Ruling
The Court finds that these claim notes are not protected by the attorneyclient privilege or the work product doctrine and thus should be
PRODUCED. In the privilege log, Defendant contends that these claim
notes reflect “communications regarding proceeding on the UIM claim in a
manner consistent with Colorado law and the status of anticipated
litigation.” The claim notes, however, make no reference to the legal
requirements for adjusting a claim under Colorado law or any anticipated
litigation. Instead, the redacted emails relate only to the status of
communications with Plaintiff’s counsel. Given that Defendant made Mr.
Olivera the primary point of contact for Plaintiff’s counsel—a role ordinarily
performed by a claims adjuster, the Court does not understand these
emails to request or relate to legal advice and they are not entitled to
attorney-client privilege protection. Sterling Const. Mgmt., LLC, 2011 WL
3903074, at *15 (“Where an attorney is acting as a conduit for nonconfidential information, the client may not invoke attorney-client privilege
with regard to that communication.”). Although the communications were
prepared at a time when Defendant may have reasonably anticipated
litigation, Defendant has not shown that such anticipated litigation was “the
driving force behind the preparation” of the communications, nor is that
apparent from the face of the documents. Colorado Mills, 2013 WL
1340649, at *6. Accordingly, the documents are not entitled to protection
under the work product doctrine.
The Court finds that these claim notes are not protected by the attorneyclient privilege or the work product doctrine and thus should be
PRODUCED. In the privilege log, Defendant contends that these claim
notes reflect “communications regarding proceeding on the UIM claim in a
manner consistent with Colorado law and the status of anticipated

This entry relates to an email from Mr. Millar to Mr. Olivera dated October 28, 2019. That same email is repeated in the claim note found
on AlaskaNational_000204, which is redacted but does not appear to be included on Defendant’s privilege log. The Court’s ruling with
regard to this entry applies also to the same email found on AlaskaNational_000204.

14

Bates No./
Document
Doc. ID*
Date
AN_0000203AN_000204

Basis Claimed
for Withholding

AN_000207

AN_000192AN_000193
AN_000199
AN_000204
AN_000207AN_000208

11/11/2019

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
litigation.” The claim notes, however, makes no reference to the legal
requirements for adjusting a claim under Colorado law or any anticipated
litigation. Instead, the redacted emails relate only to the status of Plaintiff’s
insurance claims. Defendant thus has failed to sustain its burden of
demonstrating that the claim notes relate to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities.
Although the communications were prepared at a time when Defendant
may have reasonably anticipated litigation, Defendant has not shown that
such anticipated litigation was “the driving force behind the preparation” of
the communications, nor is that apparent from the face of the documents.
Colorado Mills, 2013 WL 1340649, at *6. Accordingly, the documents are
not entitled to protection under the work product doctrine.
The Court finds that these claim notes are not protected by the attorneyclient privilege or the work product doctrine and thus should be
PRODUCED. In the privilege log, Defendant contends that these claim
notes reflect “communications regarding proceeding on the UIM claim in a
manner consistent with Colorado law and the status of anticipated
litigation.” The claim notes, however, make no reference to the legal
requirements for adjusting a claim under Colorado law or any anticipated
litigation. Instead, the redacted emails relate only to the status of
communications with Plaintiff’s counsel and the status of Plaintiff’s claim.
Given that Defendant made Mr. Olivera the primary point of contact for
Plaintiff’s counsel—a role ordinarily performed by a claims adjuster, the
Court does not understand these emails to request or relate to legal advice
and they are not entitled to attorney-client privilege protection. Sterling
Const. Mgmt., LLC, 2011 WL 3903074, at *15 (“Where an attorney is acting
as a conduit for non-confidential information, the client may not invoke
attorney-client privilege with regard to that communication.”). Defendant
thus has failed to sustain its burden of demonstrating that the claim notes
relate to the provision of legal advice rather than Mr. Olivera’s involvement
in claims adjustment activities. Although the communications were

Bates No./
Doc. ID*

AN_000198 15
AN_000203

Document
Date

11/11/2019

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
prepared at a time when Defendant may have reasonably anticipated
litigation, Defendant has not shown that such anticipated litigation was “the
driving force behind the preparation” of the communications, nor is that
apparent from the face of the documents. Colorado Mills, 2013 WL
1340649, at *6. Accordingly, the documents are not entitled to protection
under the work product doctrine.
The Court finds that these claim notes are not protected by the attorneyclient privilege or the work product doctrine and thus should be
PRODUCED. In the privilege log, Defendant contends that these claim
notes reflect “communications regarding proceeding on the UIM claim in a
manner consistent with Colorado law and the status of anticipated
litigation.” The claim notes, however, make no reference to the legal
requirements for adjusting a claim under Colorado law or any anticipated
litigation. Instead, the redacted emails relate only to the status of Plaintiff’s
insurance claims. Defendant thus has failed to sustain its burden of
demonstrating that the claim notes relate to the provision of legal advice
rather than Mr. Olivera’s involvement in claims adjustment activities.
Although the communications were prepared at a time when Defendant
may have reasonably anticipated litigation, Defendant has not shown that
such anticipated litigation was “the driving force behind the preparation” of
the communications, nor is that apparent from the face of the documents.
Colorado Mills, 2013 WL 1340649, at *6. Accordingly, the documents are
not entitled to protection under the work product doctrine.

This entry relates to an email from Mr. Millar to Mr. Olivera dated November 11, 2019. That same email is repeated in the claim note
found on AlaskaNational_000191-192, which is redacted but does not appear to be included on Defendant’s privilege log. The Court’s
ruling with regard to this entry applies also to the same email found on AlaskaNational_000191-192.
15

Bates No./
Doc. ID*
AN_000190 16

Document
Date
11/13/2019

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

AN_000191-

11/13/2019

attorney-client
privilege;
WorkProduct
Doctrine

16

Court’s Ruling
The Court finds that the claim note is not work product and only one
sentence of the redacted claim note is protected by the attorney-client
privilege and thus the remaining non-privileged portions should be
PRODUCED. In the privilege log, Defendant contends that this claim note
reflects “communications regarding proceeding on the UIM claim in a
manner consistent with Colorado law and the status of anticipated
litigation.” The claim note, however, makes no reference to the legal
requirements for adjusting a claim under Colorado law or any anticipated
litigation. Based upon the surrounding contemporaneous documentation,
however, the Court understands that the sentence that begins “I guess“ is
responding to specific legal advice provided by Mr. Olivera and thus is
entitled to attorney-client privilege protection.
[See AN_000191,
AN_000197] The remainder of the claim note, however, relates to the
status of Plaintiff’s insurance claims. Defendant thus has failed to sustain
its burden of demonstrating that this portion of the claim note relates to the
provision of legal advice rather than Mr. Olivera’s involvement in claims
adjustment activities. Although the communication was prepared at a time
when Defendant may have reasonably anticipated litigation, Defendant has
not shown that such anticipated litigation was “the driving force behind the
preparation” of the communication, nor is that apparent from the face of the
document. Colorado Mills, 2013 WL 1340649, at *6. Accordingly, the
document is not entitled to protection under the work product doctrine.
The Court finds that the claim note is not work product but that the claim
note is properly withheld pursuant to the attorney-client privilege with the
exception of one sentence that is not protected by the attorney-client
privilege and thus should be PRODUCED. The majority of the claim note
provides specific legal advice regarding recent developments in Colorado

This entry relates to an email from Mr. Millar to Mr. Olivera dated November 13, 2019. That same email is repeated in the claim note
found on AlaskaNational_000197, which is redacted but does not appear to be included on Defendant’s privilege log. The Court’s ruling
with regard to this entry applies also to the same email found on AlaskaNational_000197.

Bates No./
Doc. ID*
AN_000192 17

Document
Date

AN_000197AN_000198

11/13/2019

attorney-client
privilege;
WorkProduct
Doctrine

law and thus is protected by the attorney-client privilege. [See #51-3, ¶
11(ee) (Mr. Olivera testifying that on 11/13/2019 and 11/14/2019, he
exchanged emails with Mr. Millar conveying legal advice regarding recent
developments in Colorado law)] The sentence starting with “Still,” however,
relates to communications with Plaintiff’s counsel. Given that Defendant
made Mr. Olivera the primary point of contact for Plaintiff’s counsel—a role
ordinarily performed by a claims adjuster, the Court finds that this sentence
is not entitled to attorney-client privilege protection. Sterling Const. Mgmt.,
LLC, 2011 WL 3903074, at *15 (“Where an attorney is acting as a conduit
for non-confidential information, the client may not invoke attorney-client
privilege with regard to that communication.”). Although the communication
was prepared at a time when Defendant may have reasonably anticipated
litigation, Mr. Olivera does not mention any anticipated litigation in his
testimony regarding the communications and Defendant has not otherwise
shown that such anticipated litigation was “the driving force behind the
preparation” of the communication, nor is that apparent from the face of the
document. Colorado Mills, 2013 WL 1340649, at *6. Accordingly, the
document is not entitled to protection under the work product doctrine.
The email communications referenced in these entries are duplicative of
the email addressed in the above entry for the email found on AN_000191.
The Court’s ruling with regard to these entries thus is the same as the
above entry for the November 13, 2019 email from Mr. Olivera to Mr. Millar
found on AN_000191.

11/14/2019

attorney-client
privilege;
WorkProduct

The Court finds that the first and second sentences of the communication
in the claim note are properly withheld pursuant to the attorney-client
privilege and that the second sentence is also properly withheld on the
basis of the work product doctrine, but that the remainder of the claim note

AN_000202AN_000203
AN_000190
AN_000196AN_000197
17

Basis Claimed
for Withholding

Court’s Ruling

The communication dated 11/13/2019 that begins on AN_000191 does not extend to AN_000192. The communication that starts on
AN_000191 and extends to AN_000192 is dated 11/11/2019 and is duplicative of AN_000198 and AN_000203 addressed above. For
this entry, the Court thus only addresses the 11/13/2019 communication found entirely on AN_000191.

Bates No./
Doc. ID*

18

Document
Date

Basis Claimed
for Withholding
Doctrine

Court’s Ruling
is not protected by either the attorney-client privilege or the work product
doctrine and thus should be PRODUCED. The first and second sentences
of the communication in the claim note concern specific legal advice and
thus are protected by the attorney-client privilege. In addition, the second
sentence was prepared in response to anticipated litigation and thus is
protected by the work product doctrine. 18
The remainder of the
communication reflected in the claim note, however, relates to
communications with Plaintiff’s counsel. Given that Defendant made Mr.
Olivera the primary point of contact for Plaintiff’s counsel—a role ordinarily
performed by a claims adjuster, the Court finds that the remainder of the
claim note is not entitled to attorney-client privilege protection. Sterling
Const. Mgmt., LLC, 2011 WL 3903074, at *15 (“Where an attorney is acting
as a conduit for non-confidential information, the client may not invoke
attorney-client privilege with regard to that communication.”). Although the
communication was prepared at a time when Defendant may have
reasonably anticipated litigation, with the exception of the second sentence
of the communication reflected in the claim note, Defendant has not shown
that the anticipated litigation was “the driving force behind the preparation”
of the communication, nor is that apparent from the face of the document.
Colorado Mills, 2013 WL 1340649, at *6. Instead, with the exception of the
second sentence, the communication relates to the adjustment of Plaintiff’s
insurance claim and thus is not entitled to protection under the work product
doctrine.

Plaintiff contends that Defendant has waived any privilege with regard to communications between Mr. Olivera and Defendant regarding
monitoring the court docket by revealing the substance of those communications in its brief. [#53 at 25 n.10] Defendant responds that it
merely “identified the basis for asserting privilege, which is not itself a waiver.” [#57 at 11 n.2] The Court agrees with Defendant. In order
to maintain the assertion of privilege and work product protection, Defendant is required to “describe[ ] in detail the documents or
information claimed to be privileged and the precise reasons the materials are subject to the privilege asserted.” Sigler v. JPMorgan Chase
Bank NA, No. 10-CV-01794-LTB-BNB, 2012 WL 1130158, at *3 (D. Colo. Apr. 4, 2012).

Bates No./
Doc. ID*
AN_000189

Document
Date
12/06/2019

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine

AN_000189

12/13/2019

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege and the work product doctrine. The claim note
reflects a communication providing legal advice regarding this litigation.
Given that the communication specifically addresses the instant litigation,
the Court finds that the communication also is protected by the work
product doctrine.
The Court finds that the portion of the claim note commencing with “Update”
and concluding with “litigation” is properly withheld pursuant to the attorneyclient privilege and the work product doctrine, but that the remainder of the
claim note is not protected by either the attorney-client privilege or the work
product doctrine and thus should be PRODUCED. In the privilege log,
Defendant contends that this claim note was redacted “to remove
confidential information prepared to further ongoing litigation.” Because the
claim note was not drafted by an attorney, that description would only
appear to support Defendant’s work product claim. The surrounding
contemporaneous documentation, however, makes clear that the portion of
the claim note commencing with “Update” and concluding with “litigation”
summarizes a conversation with counsel related to legal advice and thus is
attorney-client privileged. [See AN_000189 (12/06/2019 claim note)]
Because that portion of the claim note also addresses the instant litigation,
that portion of the claim note also is protected by the work product doctrine.
Because the remainder of the summary in the claim note relates to
communications with Plaintiff’s counsel related to the adjustment of
Plaintiff’s claim that occurred prior to the time when litigation was
reasonably anticipated and does not refer to legal advice, Defendant has
not satisfied its burden to show it is entitled to protection either from the
attorney-client privilege or the work product doctrine. The final sentence of
the claim note beginning “SLR” does not reflect legal advice and appears
related to ordinary claims adjustment activities that would have been
performed regardless of the pending litigation and thus that sentence also
is not entitled to either attorney-client privilege or work product protection.

Bates No./
Doc. ID*

Document
Date

Basis Claimed
for Withholding

Court’s Ruling
See Colorado Mills, 2013 WL 1340649, at *6 (holding that anticipated
litigation must be “driving force” behind creation of the document for work
product doctrine to apply).

AN_000188

12/13/2019

attorney-client
privilege;
WorkProduct
Doctrine

The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege and the work product doctrine. The claim note
reflects a communication between Defendant and outside counsel
regarding the instant litigation and thus is protected by both the attorneyclient privilege and the work product doctrine.

AN_000188

12/18/2019

attorney-client
privilege;
WorkProduct
Doctrine

The Court takes no position regarding the propriety of Defendant’s
assertion of attorney-client privilege and work product protection over this
claim note—which contains a communication from Defendant’s in-house
counsel to a reinsurer concerning the instant litigation— because Plaintiff
has not raised a challenge specific to that designation.

AN_002351

12/06/2019

attorney-client
privilege;
work
product
doctrine.

AN_002437

11/10/2017

attorney-client
privilege

The redaction on AN_002351 consists of two emails. The first is an email
from Mr. Olivera to Mr. Millar dated December 6, 2019, which is the same
email the Court addressed above with regard to the redaction found on
AN_000189. The second is an email from Mr. Olivera to Mr. Millar dated
November 14, 2019, which is the same email the Court addressed above
with regard to the redactions found on AN_000190 and AN_000196-197.
The Court’s rulings above with regard to these emails thus apply equally to
this entry.
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The claim note summarizes legal advice provided
by outside counsel during a telephone conference between Defendant and
outside counsel, including Mr. Olivera. Moreover, there is no indication in
the record, as of November 10, 2017, that Mr. Olivera was acting in the role
of a claims adjuster rather than as an attorney. [See #51-1 at 41 (7/02/2018
email from Mr. Millar informing Ms. Anzalone that Defendant “h[as] retained

Bates No./
Doc. ID*

Document
Date

Basis Claimed
for Withholding

Court’s Ruling
Keith Olivera in Denver to work with you to get the EUO and any IME
promptly completed”)]

AN_002445

10/19/2017

attorney-client
privilege

AN_002446

10/17/2017

attorney-client
privilege

The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The claim note consists of communications
between Defendant and Mr. Olivera in which Defendant makes a specific
request for legal advice from Mr., Olivera related to Plaintiff’s claim and Mr.
Olivera provides specific legal advice. Moreover, there is no indication in
the record, as of October 19, 2017, that Mr. Olivera was acting in the role
of a claims adjuster rather than as an attorney. [See #51-1 at 41 (7/02/2018
email from Mr. Millar informing Ms. Anzalone that Defendant “h[as] retained
Keith Olivera in Denver to work with you to get the EUO and any IME
promptly completed”)]
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The claim note consists of communications
between Defendant and Mr. Olivera in which in-house counsel for
Defendant offers specific legal advice and makes a specific request to Mr.
Olivera for legal advice and provides Mr. Olivera information to assist in
providing that advice. Moreover, there is no indication in the record, as of
October 17, 2017, that Mr. Olivera was acting in the role of a claims adjuster
rather than as an attorney. [See #51-1 at 41 (7/02/2018 email from Mr.
Millar informing Ms. Anzalone that Defendant “h[as] retained Keith Olivera
in Denver to work with you to get the EUO and any IME promptly
completed”)]

Bates No./
Doc. ID*
AN_002448

Document
Date
09/15/2017

Basis Claimed
for Withholding
attorney-client
privilege

AN_002453

07/25/2017

attorney-client
privilege

This claim note contains the same communications as the claim note
Bates-numbered AN_000415 addressed above. The Court thus finds that
it is properly withheld pursuant to the attorney-client privilege for the same
reasons.

AN_002454

07/25/2017

attorney-client
privilege

This claim note contains the same communications as the claim note
Bates-numbered AN_000416 addressed above. The Court thus finds that
it is properly withheld pursuant to the attorney-client privilege for the same
reasons.

AN_002354AN_002355 19

09/17/2018

attorney-client
privilege;
Non
Responsive;
Irrelevant;
work
product
doctrine.

For the reasons explained in the Order, the Court finds that Defendant has
not demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this major loss report is not entitled to work
product protection. The Court takes no position regarding the propriety of
Defendant’s redaction of “reserves” information in this major loss report
because Plaintiff has not raised a challenge specific to those redactions.
The Court finds that the remaining redactions are not protected by the
attorney-client privilege and thus should be PRODUCED. Each of the
remaining redacted statements reflect information provided by defense
counsel for which the Court has held Defendant has not sustained its
burden for establishing the protections of the attorney client-privilege. [See
discussion of AN_000399 (8/24/2018 claim note) above] For the same

19

Court’s Ruling
The Court finds that this claim note is properly withheld pursuant to the
attorney-client privilege. The claim note consists of communications
between one of Defendant’s adjusters and one of Defendant’s in-house
counsel in which the adjuster makes a specific request for legal advice and
the in-house counsel provides legal advice.

The Court notes that “Reserve History” information also was redacted on the first page of the serious loss report, which is Batesnumbered AN_002352.

Bates No./
Doc. ID*

Document
Date

Basis Claimed
for Withholding

Court’s Ruling
reasons, the Court finds that Defendant has failed to sustain its burden of
demonstrating that these redacted statements in the major loss report
relate to the provision of legal advice rather than Mr. Olivera’s involvement
in claims adjustment activities.

AN_002358 20

20

03/18/2019

attorney-client
privilege;
NonResponsive;
Irrelevant;
work
product
doctrine.

For the reasons explained in the Order, the Court finds that Defendant has
not demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this major loss report is not entitled to work
product protection. The Court takes no position regarding the propriety of
Defendant’s redaction of “reserves” information in this major loss report
because Plaintiff has not raised a challenge specific to those redactions.
The Court finds that the redaction beginning with “recommended” is
properly withheld pursuant to the attorney-client privilege but that the
remaining redactions are not protected by the attorney-client privilege and
thus should be PRODUCED.
The redaction beginning with
“recommended” reveals specific legal advice that the Court has held is
entitled to attorney-client privilege protection and thus the Court finds that
this statement in the serious loss report repeating that advice is entitled to
protection for the same reasons. [See discussion of AN_000397
(10/22/2018 claim note) above] Each of the remaining redacted statements
relates to communications between Mr. Olivera and Plaintiff’s counsel.
Given that Defendant made Mr. Olivera the primary point of contact for
Plaintiff’s counsel—a role ordinarily performed by a claims adjuster, the
Court finds that Defendant has not sustained its burden of demonstrating
that those statements relate to the provision of legal advice and thus they
are not entitled to attorney-client privilege protection. Sterling Const.
Mgmt., LLC, 2011 WL 3903074, at *15 (“Where an attorney is acting as a
conduit for non-confidential information, the client may not invoke attorney-

The Court notes that “Reserve History” information also was redacted on the first page of the serious loss report, which is Batesnumbered AN_002356.

Bates No./
Doc. ID*
AN_002363 21

Document
Date

11/13/2019 22 attorney-client
privilege;
NonResponsive;
Irrelevant;
work
product
doctrine.

Memorandum 09/15/2018
from Robert
Christiansen
of
Investigative
Resources,
Inc. to Mr.
21

Basis Claimed
for Withholding

attorney-client
privilege;
WorkProduct
Doctrine

Court’s Ruling
client privilege with regard to that communication.”).
Although this serious loss report was prepared at a time when Defendant
may have reasonably anticipated litigation, Defendant has not shown that
such anticipated litigation was “the driving force behind the preparation” of
the communication, nor is that apparent from the face of the document.
Colorado Mills, 2013 WL 1340649, at *6. Instead, it is clear from the record
in this case that Mr. Millar created the serious loss reports as part of his
ordinary practice of adjusting a claim and thus the serious loss reports are
prepared regardless of whether litigation is anticipated. Accordingly, the
document is not entitled to protection under the work product doctrine. The
Court takes no position regarding the propriety of Defendant’s redaction of
“reserves” information in this major loss report because Plaintiff has not
raised a challenge specific to those redactions. The Court finds that the
only other redaction in the serious loss report is properly withheld pursuant
to the attorney-client privilege. That redaction—the only redaction on
AN_002363—reveals specific legal advice provided to Defendant by
outside counsel and thus is properly withheld pursuant to the attorney-client
privilege. [See AN_000196-197]
For the reasons explained in the Order, the Court finds that Defendant has
not demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus this memorandum is not entitled to work
product protection.
Although Defendant included “Attorney-Client
Privilege” as a basis for withholding this memorandum, the “document
description” states only that it is a “[m]emorandum containing attorney work
product.” Although improperly not disclosed in Defendant’s privilege log, 23

The Court notes that “reserves” information also was redacted from two other pages of the serious loss report, which are Batesnumbered AN_002360 and AN_002362.
22
Defendant’s privilege log indicated that the document was dated “11/13/2018.” That appears to be a typographical error as the
document itself is dated 11/13/2019 and based upon the surrounding context found in the document, that date appears to be accurate.
23
Pursuant to Fed. R. Civ. P. 26(b)(5)(A)(ii), a party withholding information on the basis of privilege must “describe the nature of the

Bates No./
Doc. ID*
Olivera, with
attachments
(9 pages)

Document
Date

Basis Claimed
for Withholding

Court’s Ruling
the document is a memorandum from Robert Christiansen of Investigative
Resources, Inc. to Mr. Olivera. It thus is not clear from the face of the
document that it is subject to the attorney-client privilege and Defendant
has offered no specific argument in support of a finding that this
memorandum is privileged. Notably, Defendant submitted a declaration
from Mr. Olivera in support of its claims of privilege and work product, but
that declaration is silent as to the instant memorandum. Defendant thus
has not established that Mr. Olivera obtained the memorandum to assist
him in providing legal advice; nor does that seem likely in light of the
subject-matter of the memorandum. Indeed, the Court found above that
Defendant failed to provide sufficient evidence to demonstrate that the
decision to obtain this type of report was made for the purpose of obtaining
legal advice rather than as part of Mr. Olivera’s involvement in claims
adjustment activities. [See discussion of AN_000399 (8/24/2018 claim
note) above] For the same reasons, the Court finds that Defendant has
failed to sustain its burden of demonstrating that this memorandum was
obtained to aid in the provision of legal advice rather than as part of Mr.
Olivera’s involvement in claims adjustment activities. The Court thus
concludes that the memorandum is not attorney-client privileged.

documents . . . in a manner that . . . will enable other parties to assess the claim.” “Generally, a privilege log is adequate if it identifies
with particularity the documents withheld, including their date of creation, author, title or caption, addressee and each recipient, and
general nature or purpose for creation.” Zander v. Craig Hosp., 743 F. Supp. 2d 1225, 1232 (D. Colo. 2010). Defendant’s conclusory
statement that the memorandum “contain[s]” attorney work product is woefully inadequate. Further, although Defendant’s privilege log
includes a column to identify “To/From” information and the memo itself expressly states this information at the top, Defendant failed to
include that information in its privilege log. Because the Court finds that Defendant has failed to satisfy its burden of establishing that the
document is privileged, the Court does not reach the issue of whether Defendant has waived the right to assert privilege based upon
these clear deficiencies in the privilege log. See Atteberry v. Longmont United Hosp., 221 F.R.D. 644, 649 (D. Colo. 2004) (“[P]roduction
of an inadequate privilege log may be deemed a waiver of the privilege asserted.”), aff'd, 2005 WL 8169547 (D. Colo. Aug. 18, 2005).

Bates No./
Document
Doc. ID*
Date
Letter from Mr. 10/17/2018
Olivera to
Richard Myers
of JAMS, with
attachments
(40 pages)

Basis Claimed
for Withholding
attorney-client
privilege;
WorkProduct
Doctrine
Confidential
Under Rule
408

Court’s Ruling
For the reasons explained in the Order, the Court finds that Defendant has
not demonstrated that it reasonably anticipated litigation prior to October 4,
2019 at the earliest and thus the letter and its exhibits are not entitled to
work product protection. The Court takes no position regarding the
propriety of Defendant withholding the letter and exhibits based upon
Federal Rule of Evidence 408, because Plaintiff has not raised a challenge
specific to that withholding. Because Plaintiff has not challenged
Defendant’s decision to withhold these documents on the basis of Rule
408, the Court finds it unnecessary to consider whether the documents also
are protected from production pursuant to the attorney-client privilege and
the parties have not addressed that issue.