Mehta v. Ace American Insurance Co
Filing
71
ORDER granting in part and denying in part 62 Motion to Compel; granting 63 Motion for Extension of Time; denying 64 Motion for Order. Response to 54 Motion for Summary Judgment due by 7/9/2013. Signed by Judge Donna F. Martinez on 6/18/13. (Nichols, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DINESH MEHTA,
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Plaintiff,
v.
ACE AMERICAN INSURANCE
COMPANY,
Defendant.
CASE NO. 3:10CV1617(RNC)
RULING ON MOTIONS
Plaintiff Dinesh Mehta brings this diversity action
individually and as administrator of his late wife's estate
against defendant Ace American Insurance Company alleging that
that he is entitled to payment under an underinsured motorist
policy for fatal injuries suffered by his wife while she was
crossing Main Street in East Hartford.
(Doc. #1.)
Pending
before the court are plaintiff's Second Motion to Compel (doc.
#62) and Motion for Extension of Time (doc. #63) and defendant's
Motion for Order deeming facts admitted (doc. #64).1
A.
Second Motion to Compel
1.
Procedural History
In July 2012, defendant objected to certain discovery
requests on grounds of privilege.
(Doc. #48-1.)
2012, plaintiff filed his first motion to compel.
1
In September
(Doc. #48.)
District Judge Robert N. Chatigny referred the motions to
the undersigned. (Doc. #65.)
The court granted the motion in part and reminded defendant that
"any assertion of privilege as to a responsive document must be
set forth in a privilege log pursuant to D. Conn. L. Civ. R.
26(e)."
(Doc. #58.)
The court subsequently granted defendant's
request for an extension of time to respond to the requests.
(Doc. #60.)
In February 2013, defendant served a privilege log on
plaintiff claiming that certain responsive documents were
protected from disclosure by the attorney-client privilege and
the work product doctrine.
(Doc. #62 at 10.)
In April 2013,
plaintiff filed the pending Second Motion to Compel.
#62.)
(Doc.
At oral argument on May 24, 2013, the court observed that
the privilege log was not sufficiently detailed and directed
defendant to submit a sample of the allegedly privileged
documents for in camera review.
See Fed. R. Civ. P. 25(b)(5)(A)
(privilege log must contain sufficient detail to "enable other
parties to assess the claim").
2.
Legal Standard
A motion to compel is entrusted to the sound discretion of
the district court.
Cir. 2003).
In re Fitch, Inc., 330 F.3d 104, 108 (2d
"The burden of establishing the existence of an
attorney-client privilege, in all of its elements, rests with
the party asserting it."
Bolorin v. Borrino, 248 F.R.D. 93, 95
(D. Conn. 2008) (internal citations and quotation marks
2
omitted).
"[A] privilege log must be sufficiently detailed to
permit a judgment as to whether the document is at least
potentially protected from disclosure, and other required
information should be submitted in the form of affidavits or
deposition testimony."2
Id. (citation omitted).
See also Rule
26(b)(5)(A) (party asserting privilege must provide sufficient
detail to "enable other parties to assess the claim").
"[I]n a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of
decision."
Fed. R. Evid. 501.
Thus, a federal court sitting in
diversity applies state law to attorney-client privilege issues
but federal law to those involving work product.
EDO Corp. v.
Newark Ins. Co., 145 F.R.D. 18, 21 (D. Conn. 1992).
The party
invoking the privilege bears the burden of establishing all of
the elements of the privilege.
PSE Consulting, Inc. v. Frank
2
Here, defendant initially objected to the discovery
requests but provided no privilege log. The court allowed
defendant to submit a privilege log, but the privilege log was
insufficient. The court then invited defendant to submit a
sample of the allegedly privileged documents for in camera
inspection. Instead of a sample, defendant submitted the full
set of allegedly privileged documents (minus one). Most the
Bates-stamped pages are duplicates of other pages. Defendant
did not submit an affidavit to clarify essential details such as
the relationship between the individuals named in the documents.
See United States v. Constr. Prod. Research, 73 F.3d 464, 473
(2d Cir. 1996) (denying claim of privilege because of
deficiencies including "the glaring absence of any supporting
affidavits or other documentation"). Defendant's languid
approach to its claims of privilege has resulted in unnecessary
and wasteful delay.
3
Mercede and Sons, Inc., 267 Conn. 279, 330 (2004); United States
v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers
of Am., AFL-CIO, 119 F.3d 210, 214 (2d Cir. 1997).
The attorney-client privilege, as applied in the
Connecticut courts, "protects both the confidential giving of
professional advice by an attorney acting in the capacity of a
legal advisor to those who can act on it, as well as the giving
of information to the lawyer to enable counsel to give sound and
informed advice."
Metropolitan Life Ins. Co. v. Aetna Casualty
& Surety Co., 249 Conn. 36, 52, 730 A.2d 51, 60 (1999).
"Exceptions to the attorney-client privilege should be made only
when the reason for disclosure outweighs the potential chilling
of essential communications."
Id.
Subject to the "common
interest" rule, once a privileged communication has been
disclosed purposely to a third party, the attorney-client
privilege is waived.
United States v. United Technologies Corp,
979 F. Supp. 108, 111 (D. Conn. 1997).
The work product doctrine, as applied in federal courts,
shields from disclosure documents and other materials prepared
in anticipation of litigation or trial by a party or a party's
representative, absent a showing of substantial need and the
inability to obtain the substantial equivalent without undue
hardship.
Fed. R. Civ. P. 26(b)(3).
"Where a document was
created because of anticipated litigation, and would not have
4
been prepared in substantially similar form but for the prospect
of that litigation, it falls within Rule 26(b)(3)."
States v. Adlman, 134 F.3d 1194 (2d Cir. 1998).
United
In the context
of insurance claims, courts " must be careful not to hold that
documents are protected from discovery simply because of a
party's 'ritualistic incantation' that all documents created by
insurers are made in preparation for litigation, and mindful of
the fact that insurer-authored documents are more likely than
attorney-authored documents to have been prepared in the
ordinary course of business, rather than for litigation
purposes."
QBE Ins. Corp. v. Interstate Fire & Safety Equipment
Co., Inc., No. 3:07CV1883(SRU), 2011 WL 692982, at *2-3 (D.
Conn. Feb. 18, 2011) (quoting Weber v. Paduano, No. 02cv3392
(GEL), 2003 WL 161340, at *4 (S.D.N.Y. Jan. 22, 2003).
3.
Discussion
The court has reviewed defendant's allegedly privileged
documents in camera.
Most of them are emails by and with
defendant's claims specialist, an attorney, prior to the
coverage decision.
"An insurance company may not insulate
itself from discovery by hiring an attorney to conduct ordinary
claims investigations. . . .
[T]o the extent an attorney acts
as a claims adjuster, claims process supervisor, or claims
investigation monitor, and not as a legal advisor, the attorneyclient privilege does not apply."
5
First Aviation Services, Inc.
v. Gulf Ins. Co., 205 F.R.D. 65, 69 (D. Conn. 2001) (internal
citations and quotation marks omitted).
In short, documents
connected to an insurance claims investigation are privileged
only if they are "truly confidential inquiries or responses to
counsel concerning legal advice, rather than the insurance
claims."
Reichhold Chemicals, Inc. v. Hartford Acc. and Indem.
Co., No. CV880160018S, 2000 WL 1227306, at *4 (Conn. Super. Aug.
15, 2000).
Although defendant's claims specialist was an
attorney, the attorney-client privilege does not apply to her
work on the claims investigation.
The remaining documents are a privileged email from
defendant's in-house counsel containing legal advice, a
privileged post-complaint coverage opinion by outside counsel,
and post-complaint internal communications prepared in
anticipation of trial.
In light of the foregoing, the court
rules on plaintiff's Motion to Compel as follows:
1.
The plaintiff does not seek disclosure of Bates No.
000001-000004 and 000016-000018.
1.)
(See Pl.'s Mem., doc. #62 at
As to those documents, the motion is denied as moot.
2.
The motion is DENIED as to Bates No. 000027-000030.
3.
The motion is DENIED as to Bates No. 000031, 000126 and
000147, which are duplicates.
4.
The motion is DENIED as to Bates No. 00172-00173,
000174, 000179-000182.
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5.
The motion is GRANTED as to Bates No. 000131, 000158
and 000165, which are duplicates.
Defendant has not made any
showing to explain the relationship between its claims
specialist and the recipient of the email, Brian Foti.
Defendant has failed to meet its burden of establishing that the
privilege applies, and the document must be disclosed.
6. The motion is GRANTED as to all other documents listed
on defendant's privilege log dated February 4, 2013 (doc. #62 at
10-12).
B.
Other Motions
Plaintiff's Motion for Extension of Time (doc. #63) is
GRANTED.
Plaintiff's opposition to defendant's Motion for
Summary Judgment (doc. #54) is due by July 9, 2013.
Defendant's Motion for an Order deeming facts admitted
(doc. #64) is DENIED.
SO ORDERED at Hartford, Connecticut this 18th day of June,
2013.
____________/s/______________
Donna F. Martinez
United States Magistrate Judge
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