CENTRAL BAPTIST CHURCH OF ALBANY GEORGIA INC v. CHURCH MUTUAL INSURANCE COMPANY
ORDER directing Plaintiff, within 14 days of the issuance of this Order, to file a supplement motion with regard to the privilege log and Defendant shall file a response 14 days thereafter re 31 MOTION to Compel filed by CENTRAL BAPTIST CHURCH OF ALBANY GEORGIA INC. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 12/05/2017. (mdm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CENTRAL BAPTIST CHURCH
OF ALBANY GEORGIA INC.,
CASE NO.: 1:16-CV-231 (LJA)
Before the Court is Plaintiff Central Baptist Church of Albany’s Motion to Compel.
Doc. 31. Plaintiff’s Complaint alleges breach of contract and bad faith against its insurer,
Defendant Church Mutual Insurance Company, and also prays for attorney’s fees under
O.C.G.A. § 33-4-6. Doc. 1 at 8-13. The Complaint alleges that a hail and wind storm that
occurred on December 23, 2014, caused “substantial damage and associated water intrusion
to the buildings and structures located on the Insured Premises [ ]. As a result of the [l]oss,
the buildings and structures located on the Insured Premises suffered direct physical loss
covered by the terms of the Policy.” Doc. 1 at 3. A dispute arose as to the amount of the
loss to Plaintiff’s property. On March 5, 2015, Plaintiff contacted Defendant to express
dissatisfaction with the $1,302.99 (Plaintiff’s amount of loss as determined by Defendant
minus Plaintiff’s $1,000.00 deductible) claim payment Defendant made to Plaintiff. Docs.
31-1 at 3; 36 at 7. Defendant estimated the loss at $2,302.99, while Plaintiff estimated the
loss at more $1 million. Doc. 1 at 4. On January 20, 2016, Plaintiff’s agent sent Defendant a
report and a $1,014,481.47 repair estimate. Docs. 36 at 10; 31-1 at 4. On February 5, 2016, at
Defendant’s direction, Steve Hall inspected Plaintiff’s property. Doc. 36 at 11. On March 16,
2016, Defendant declined to participate in the appraisal process with Plaintiff. Doc. 36 at 11.
Plaintiff alleges Defendant officially denied its claim on November 15, 2016. Doc. 1 at 7.
Plaintiff seeks to compel Defendant or its agents to disclose “all relevant
communications and reports [including a file prepared by a Mr. Hall] that were generated
prior to [Defendant] officially denying [Plaintiff’s] claim,” or at “a minimum, . . . all relevant
communications and reports made prior to [Defendant] officially declining [Plaintiff’s]
request for appraisal.” Docs. 31-1 at 7; 36 at 11. Alternatively, Plaintiff seeks an “in camera
review of these documents be conducted so that the Court can determine whether these
documents were produced in the ordinary course of insurance business or in anticipation of
litigation.” Doc. 31-1 at 7, 19. Further, Plaintiff seeks “in camera review of certain documents
[Defendant] claims to be privileged by the attorney-client privilege . . . to determine whether
or not the communications were made to facilitate the rendition of legal services or if they
were made in the ordinary course of insurance business.” Doc. 31-1 at 19-20. Plaintiff “also
asks this Court to compel [Defendant’s] witnesses to appear for another round of
depositions to answer questions regarding the withheld documents and for [Defendant] to
pay the fees and expenses associated with such.” Doc. 31-1 at 20. Finally, Plaintiff seeks
costs and attorney’s fees for its Motion pursuant to Federal Rule of Civil Procedure 37. Doc.
31-1 at 20.
In its Response, Defendant contends that: “[T]he documents Plaintiff seeks are
protected under Fed. R. Civ. P. 26(b)(3) as they contain protected work product. Likewise,
the documents were prepared in anticipation of litigation. Moreover, under no circumstances
can Plaintiff show a ‘substantial’ need” for the requested material. Doc. 36 at 3. Defendant
also argues that their consultant, Mr. Hall, is a non-testifying consultant or expert whose
communications are protected under Fed. R. Civ. P. 26(b)(4)(D)(ii). Doc. 36 at 3.
A. The Work Product Doctrine
“[T]he scope of protection provided by the work product doctrine is a procedural
question and thus governed by federal as opposed to state law in a diversity action.” Camacho
v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 694 (N.D. Ga. 2012). “Rule 26(b)(3)(A)(ii)
protects from discovery documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent) unless the requesting party shows
that it has substantial need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” Id. (citation and punctuation
Insurance claim files generally do not constitute work product in the early
stages of investigation, when the insurance company is primarily concerned
with deciding whether to resist the claim, to reimburse the insured and seek
subrogation . . . or to reimburse the insured and forget about the claim
thereafter. . . . [C]laim files straddle both ends of this definition, because it is
the ordinary course of business for an insurance company to investigate a
claim with an eye toward litigation. Once litigation is imminent, however, the
claims investigation file is maintained “in anticipation of litigation” and its
contents are protected by the work product doctrine.
Id. (same). Thus, in applying Rule 26(b)(3), a Court’s “first task is to determine which
documents were produced ‘in anticipation of litigation.’ For documents that were produced
in anticipation of litigation, the second issue is whether [a movant] can show ‘substantial
need’ and an inability to obtain the materials by other means.” Underwriters Ins. Co. v. Atlanta
Gas Light Co., 248 F.R.D. 663, 667 (N.D. Ga. 2008). “Even as to documents for which [a
movant] can show substantial need, documents containing the ‘mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative must’ receive
additional (if not complete) protection. Id. (citation and punctuation omitted).
Here, Plaintiff argues that the claim file and other documents withheld are not
covered by the work product doctrine because they were not produced in anticipation of
litigation; or, in the alternative, that because Plaintiff cannot prove its bad faith claim without
these documents, Plaintiff has shown substantial need for the requested material. After a
review of the briefing on this Motion, it is clear that Defendant prepared certain documents
in anticipation of litigation at least beginning after March 5, 2015, the date Plaintiff,
“[o]utraged,” contacted Defendant “unhappy” about the claim payment Defendant made to
Plaintiff. Docs. 31-1 at 3; 36 at 7. Thus, absent substantial need, any documents Defendant
created after March 5, 2015, are covered by the work-product doctrine and are privileged.
An analysis under Rule 26(b)(4)(D)(ii) warrants a similar conclusion. This rule
prohibits discovery from non-testifying experts retained in anticipation of litigation, except
in certain exceptional circumstances. Fed. R. Civ. P. 26(b)(4)(D)(ii). Rule 26(b)(4)(D) only
protects against the disclosure of information created or learned by Mr. Hall while “working
with Defendant’s attorneys in preparing for and litigating claims and defenses in this case.
Excluded from the protection of the rule is information Mr. [Hall] created or learned . . .
prior to Defendant retaining him as an expert.” Marlin VI Princess Deep Sea Fishing, LLC v. N.
Assurance Co. of Am., 2014 WL 12629776, at *2 (M.D. Fla. Jan. 6, 2014) (citation and
punctuation omitted). “[T]he rule does not address itself to the expert whose information
was not acquired in preparation for trial but rather because he was an actor or viewer with
respect to transactions or occurrences that are part of the matter of the lawsuit.” Id. (same).
Here, Mr. Hall was retained after Defendant anticipated litigation on Plaintiff’s claim. Thus,
Plaintiff must show exceptional circumstances as to both its bad faith claim and its breach of
contract claim to obtain the requested material.
Assuming for argument’s sake that Plaintiff has shown substantial need with regard
to its bad faith claim1 to examine the claims file and other documents created in anticipation
of litigation, it has not shown such a need with regard to the breach of contract claim. After
consideration, a bifurcation of Plaintiff’s bad faith claim from the underlying breach of
contract claim until the latter is resolved preserves Defendant’s rights under the workproduct doctrine for the breach of contract claim by not permitting Plaintiff to rummage
through Defendant’s claims file by including an allegation of bad faith in its Complaint. This
bifurcation also recognizes that Plaintiff may not be able to prove its bad faith claim without
the claims file. See Magnolia Bankshares, Inc. v. Fed. Ins. Co., 2014 WL 12703719, at *5 (S.D. Ga.
Apr. 28, 2014) (noting that Federal Rule of Civil Procedure 42(b) provides that courts may
order separate trial of separate claims).
B. The Attorney-Client Privilege
“Whether documents are protected by the attorney-client privilege is a substantive
issue governed by state law.” Camacho, 287 F.R.D. at 691. Under Georgia law, “[t]he privilege
“To prevail on a claim for an insurer’s bad faith under O.C.G.A. § 33–4–6, the insured must prove:
(1) that the claim is covered under the policy, (2) that a demand for payment was made against the insurer
within 60 days prior to filing suit, and (3) that the insurer’s failure to pay was motivated by bad faith.” Lawyers
Title Ins. Corp. v. Griffin, 691 S.E.2d 633, 636–37 (Ga. Ct. App. 2010) (citation and punctuation omitted). “Bad
faith is shown by evidence that under the terms of the policy under which the demand is made and under the
facts surrounding the response to that demand, the insurer had no ‘good cause’ for resisting and delaying
payment.” Id. (same).
generally attaches when legal advice is sought from an attorney, and operates to protect from
compelled disclosure any communications, made in confidence, relating to the matter on
which the client seeks advice.” St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn,
P.C., 746 S.E.2d 98, 103 (Ga. 2013). “In Georgia, the attorney-client privilege is to be
narrowly construed.” Camacho, 287 F.R.D. at 692. The burden is upon the party invoking the
privilege to establish that a document is privileged legal advice and thus not subject to
discovery. See S. Guar. Ins. Co. of Georgia v. Ash, 383 S.E.2d 579, 583 (Ga. Ct. App. 1989). This
burden is met by “present[ing] a privilege log with specific reasons for claiming the
privilege” to the Court. Bank of Am., N.A. v. Georgia Farm Bureau Mut. Ins. Co., 2014 WL
4851853, at *4 (M.D. Ga. Sept. 29, 2014). In determining whether a document is protected
by attorney-client privilege, courts in Georgia consider the totality of the circumstances. Ash,
383 S.E.2d at 583. However, “[i]n camera review is not appropriate merely because a party
objects to the assertions of privilege. . . . [W]here there is a sufficient evidentiary showing
that an issue exists regarding the application of [ ] privilege, the court must utilize its
discretion as to whether in camera review is appropriate . . . .” United States v. Davita, Inc., 301
F.R.D. 676, 681 (N.D. Ga. 2014), on reconsideration in part, 2014 WL 11531065 (N.D. Ga. May
Here, while Defendant did not submit its privilege logs or an affidavit in Response to
Plaintiff’s Motion, Plaintiff attached the relevant portions of Defendant’s privilege logs to its
Motion. Docs. 31 & 36. Plaintiff, however, makes no specific argument as to why it believes
certain documents were not privileged; rather, Plaintiff broadly speculates that such
documents may have been made in the normal course of business. Doc. 31-1 at 20.
Defendant has not carried its burden with regard to the invocation of the attorney-client
privilege. The Court, however, is not inclined to engage in an in camera review absent a more
particularized motion by Plaintiff and a response by Defendant. Accordingly, within
fourteen (14) days of the issuance of this Order, Plaintiff shall file a supplemental motion
with regard to the privilege log, and Defendant shall file a response fourteen (14) days
thereafter. Plaintiff’s request to compel Defendant to produce documents in the claims file
or in the file created by Mr. Hall, after March 5, 2015, its request to have Defendant’s
witnesses re-deposed with regards to the withheld documents, and its request for attorney’s
fees under Rule 37 are DENIED without prejudice to Plaintiff’s right to refile this Motion
as necessary after the resolution of Plaintiff’s breach of contract claim.
It is further ORDERED that Plaintiff’s breach of contract claim is SEVERED
from Plaintiff’s bad faith claim. The parties are instructed to proceed with discovery on the
breach of contract claim according to the current discovery deadlines and to bear in mind
that, given that some discovery on the bad faith claim has already been conducted, if
discovery on Plaintiff’s bad faith claim is needed after the resolution of the breach of
contract claim, only a limited discovery period will be granted.
SO ORDERED, this 5th day of December, 2017.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?