Illiana Surgery and Medical Center LLC v. Hartford Fire Insurance Company

Filing 231

OPINION AND ORDER The Motion to Quash Plaintiffs Subpoenas and Request for Protective Order DE 213 filed by the defendant, Hartford Fire Insurance Co., on October 28, 2011, is GRANTED IN PART and DENIED IN PART; the Motion for Leave to Submit Surre ply Brief in Opposition to Hartfords Motion to Quashand Request for Protective Order DE 221 filed by the plaintiffs, Illiana Surgery and Medical Center, LLC, and iHealthcare, Inc., on December 12, 2011, is GRANTED; and the Motion in Opposition to P laintiffs Motion for Leave to Submit a Surreply Brief in Opposition to Hartfords Motion to Quash DE 222 filed by Hartford on December 16, 2011, is DENIED. Hartford must produce all information Illiana requests with the exception of documents requested in Request Numbers 1-3 created after December 7, 2010, and Puglieses summary of Krauses examination under oath. Signed by Magistrate Judge Andrew P Rodovich on 3/7/12. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ILLIANA SURGERY AND MEDICAL
CENTER LLC nka Heartland
Memorial Hospital LLC,
iHEALTHCARE, INC.,
Plaintiffs
v.
HARTFORD FIRE INSURANCE
COMPANY,
Defendant

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Case No. 2:07 cv 3

OPINION AND ORDER
This matter is before the court on the Motion to Quash
Plaintiffs' Subpoenas and Request for Protective Order [DE 213]
filed by the defendant, Hartford Fire Insurance Co., on October
28, 2011; the Motion for Leave to Submit Surreply Brief in
Opposition to Hartford’s Motion to Quash and Request for Protective Order [DE 221] filed by the plaintiffs, Illiana Surgery and
Medical Center, LLC, and iHealthcare, Inc., on December 12, 2011;
and the Motion in Opposition to Plaintiffs' Motion for Leave to
Submit a Surreply Brief in Opposition to Hartford’s Motion to
Quash [DE 222] filed by Hartford on December 16, 2011.

For the

following reasons, the Motion to Quash Plaintiffs' Subpoenas and
Request for Protective Order [DE 213] is GRANTED IN PART and
DENIED IN PART; the Motion for Leave to Submit Surreply Brief in
Opposition to Hartford’s Motion to Quash and Request for Protec-

tive Order [DE 221] is GRANTED; and the Motion in Opposition to
Plaintiffs' Motion for Leave to Submit a Surreply Brief in
Opposition to Hartford’s Motion to Quash [DE 222] is DENIED.
Background
On December 9 or 10, 2004, an unknown person accessed and
destroyed Illiana Surgery and Medical Center’s medical management
computer system.

Illiana held an insurance policy with Hartford

Fire Insurance Company that provided coverage for lost business
personal property and electronic vandalism.

Illiana tendered a

claim to Hartford, and it retained the law firm of Fisher Kanaris
to assist with the adjustment of the claim.

Fisher Kanaris

launched an investigation into the claim and after two years had
not issued a coverage determination letter.

The insurance policy

stated that the insured had to file a lawsuit within two years of
filing a claim or the right to do so would be lost.

Fearing the

two years would expire without a coverage determination, Illiana
filed a complaint on December 7, 2006, alleging breach of the
insurance contract and bad faith.
Discovery commenced, and Illiana requested all documents
related to the adjustment of its claim.

At the April 4, 2007

pretrial conference, the court ordered Hartford to produce its
insurance policies, examinations under oath (EUOs), and claim
files.

Hartford proceeded to produce its insurance policies, two

2

EUOs, and a set of documents presented as its claims file.

Hart-

ford contemporaneously produced a privilege log, listing the
documents it was withholding. On April 8, 2008, Hartford sent
Illiana an amended privilege log and additional documents that
previously were withheld.
On April 17, 2008, Illiana filed a motion to compel the
production of certain documents withheld by Hartford.

Hartford

objected that the documents were shielded from discovery by the
attorney-client and work product privilege.

The court determined

that the Fisher Kanaris attorneys were serving as outside claims
adjusters rather than in their capacity as legal counsel and that
the attorney-client and work product privileges did not apply.
This court ordered production of the documents, and the decision
was affirmed by the district court.
While Illiana was preparing to depose Hartford’s lead claims
adjuster, Steve Palazzolo, it determined that Hartford failed to
produce documents contained in its claims file.

Illiana sent an

additional document request on May 1, 2009, to ensure that all
the documents in Hartford’s claims file either had been produced
or would be produced prior to Palazzolo’s deposition.

Illiana

supplemented its May 1 document request with a list of the documents Illiana believed to be missing from the file.

After some

discussion, Hartford agreed to supplement its document production

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and produce the entire claims file.

On July 15, 2009, Hartford

produced 797 new claim file documents, and on July 22, 2009, it
produced 333 more.
Following the production of these documents, Illiana requested the attachments to several emails that were omitted from
the file and served an additional document request.

Hartford

represented that the entire file had been produced.

However, 53

documents consisting of 330 pages were produced immediately
before Jack Keeley, Hartford’s computer consultant’s, deposition.
Hartford also produced an additional 441 documents from Hartford’s claims files days before the deposition of Kevin Pugliese,
the Fisher Kanaris attorney who performed most of the adjusting
and investigation of the Illiana claim.

Illiana complained that

none of the documents produced prior to Pugliese’s deposition
were listed in Hartford’s privilege log and that Illiana had no
way of knowing the documents existed or that the entire claims
file had not been produced.
The court sanctioned Hartford for failing to comply with the
April 4, 2007, June 30, 2008, and November 18, 2008 Orders,
because Hartford failed to produce discovery it was ordered to
turn over, did not perform a diligent search for the requested
documents, and continued to withhold documents.

This court

limited the evidence Hartford could introduce at trial.

4

Both

parties moved to have the district court reconsider the sanctions
imposed.

District Judge Joseph Van Bokkelen held a hearing and

asked Hartford "[W]ithout being – splitting hairs as to what
belongs in a claim file and does not belong in a claims file, has
everything that Hartford or its subsidiaries or people working
for Hartford or people connected to this file in any way or the
other, has that all, every document been produced at this point."
Hartford’s counsel answered affirmatively.

The district court

limited the sanctions to attorneys fees and re-opened discovery
so Illiana could gather the remainder of the information it was
denied the opportunity to discover.
In response to Judge VanBokkelen’s order, Illiana issued new
discovery, including a supplemental document request, a deposition notice, a subpoena to Buchanan Clarke and Schlader, a subpoena for documents to Guidance Software, Inc., and a subpoena
for documents to Fisher Kanaris.

Hartford has moved to quash the

subpoenas, arguing that they are untimely, exceed the scope of
the court order, and request privileged information.

Illiana

filed a response on November 14, 2011, and on November 28, 2011,
Hartford submitted its reply brief and attached a new privilege
log.

Illiana now requests the opportunity to respond to both the

privilege log and the new arguments raised in Hartford’s reply
brief.

5

Discussion
Local Rule 7.1(a) allows parties to file an initiating
brief, a response, and a reply, but it does not contemplate the
filing of a surreply or response to the reply brief.

The court

generally does not permit litigants to file a surreply brief.

Hall v. Forest River, Inc., 2008 WL 1774216, *n.3 (N.D. Ind.
April 15, 2009); Runkle v. United States, 1995 WL 452975, *1
(N.D. Ind. May 9, 1995).

However, "[a] surreply brief is occa-

sionally allowed when it raises or responds to some new issue or
development in the law."

Merrill Lynch Life Ins. Co. v. Lincoln

Nat. Life Ins. Co., 2009 WL 3762974, *1 (N.D. Ind. Nov. 9, 2009)
(citing Hall, 2008 WL 1774216 at *n.3).

The court’s decision to

permit or deny a surreply brief is reviewed under an abuse of
discretion standard.

Cleveland v. Porca Co., 38 F.3d 289, 297

(7th Cir. 1994).
Hartford submitted a privilege log as an exhibit to its
reply in support of its motion to quash and argued for the first
time that the work produced by attorneys other than Pugliese is
subject to the attorney-client privilege because the court has
not ruled that these attorneys were acting as outside claims
adjusters.

Because Hartford raised new issues and submitted a

new exhibit, the court, in its discretion, will afford Illiana an
opportunity to respond to these developments.

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The court GRANTS

Illiana’s Motion for Leave to Submit Surreply Brief in Opposition
to Hartford’s Motion to Quash and Request for Protective Order
[DE 221] and DENIES the Motion in Opposition to Plaintiff’s
Motion for Leave to Submit a Surreply Brief in Opposition to
Hartford’s Motion to Quash [DE 222].
Federal Rule of Civil Procedure 45(c)(3)(A)(iii) provides
that "[o]n timely motion, the Court by which a subpoena was
issued shall quash or modify the subpoena if it . . . requires
disclosure of privileged or other protected material and no
exception or waiver applies."

Further, "the party seeking to

quash a subpoena under Rule 45(c)(3)(A) has the burden of demonstrating that the information sought is privileged or subjects a
person to an undue burden."

Hodgdon v. Northwestern University,

245 F.R.D. 337, 341 (N.D. Ill. 2007).

A specific explanation of

why the document is privileged must be shown by the party claiming a privilege, such that a court can decide whether the party
has met its burden.

Allendale Mutual Insurance Company v. Bull

Data Systems, Inc., 152 F.R.D. 132, 137 (N.D. Ill. 1993).

Mere

conclusory statements of privilege will not satisfy the party's
burden. United States v. White, 950 F.2d 426, 430-31 (7th Cir.
1991).
The attorney-client privilege is the oldest privilege,
recognized by the common law, for confidential communications.

7

Upjohn Company v. United States, 449 U.S. 383, 389, 101 S.Ct.
677, 682, 66 L.Ed.2d 584 (1981).

The attorney-client privilege

is designed to prevent the disclosure of confidential information
about a client.

Allendale Mutual Insurance Company, 152 F.R.D.

at 135 (citing United States v. Lawless, 709 F.2d 485, 487 (7th
Cir. 1983)).

It is intended to encourage complete and honest

communication between attorneys and their clients and thereby
"promote broader public interests in the observance of law and
administration of justice."

Upjohn, 449 U.S. at 389, 101 S.Ct.

at 682.
When the basis of federal jurisdiction is diversity, the
court applies the state law of attorney-client privilege. Federal
Rule of Evidence 501.

See Country Life Insurance Company v. St.

Paul Surplus Lines Insurance Company, 2005 WL 3690565, *4 (C.D.
Ill. Jan. 31, 2005).

See also Lorenz v. Valley Forge Insurance

Company, 815 F.2d 1095, 1097 (7th Cir. 1987).

Indiana codified

the attorney-client privilege under Indiana Code §34-46-3-1 which
states in part that "[e]xcept as otherwise provided by statute,
the following persons shall not be required to testify regarding
the following communications: (1) Attorneys, as to confidential
communication made to them in the course of their professional
business, and to advice given in such cases."

The attorney-

client privilege "applies to all communications between the

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client and his attorney for the purpose of obtaining professional
legal advice or [legal] aid regarding the client's rights and
liabilities."

Penn Central Corporation v. Buchanan, 712 N.E.2d

508, 515 (Ind. App. 1999).

"The scope of the privilege should be

strictly confined within the narrowest possible limits."

Law-

less, 709 F.2d at 485. See also Prevue Pet Products, Inc. v.
Avian Adventures, Inc., 200 F.R.D. 413, 415 (N.D. Ill. 2001).
"Regarding insurance claims, to the extent that an attorney
has acted as a claims adjuster, claims process supervisor, or
claims investigation monitor, and not as a legal advisor, the
privilege is not applicable."

Stout v. Illinois Farmers Insur-

ance Company, 150 F.R.D. 594, 610 (S.D. Ind. 1993).

See also

Continental Casualty Company v. Marsh, 2004 WL 42364, *2 (N.D.
Ill. Jan. 6, 2004)("The public policy issue behind this result is
that insurance companies, which are in the business of reviewing,
processing, and adjusting claims, should not be permitted to
insulate the factual findings of a claims investigation by the
involvement of an attorney to perform such work.").

Further, an

insurance company's blanket claim of privilege is insufficient
without specific information regarding each document withheld on
the basis of privilege.

Hartford Financial Services Group, Inc.

v. Lake County Park and Recreation Board, 717 N.E.2d 1232, 1237
(Ind. App. 1999).

Thus, information does not become privileged

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simply because it came from counsel and was declared as advice.

Allendale Mutual Insurance, 152 F.R.D. at 138.
"The work product privilege is distinct from and broader
than, the attorney-client privilege."

Broadnax v. ABF Freight

Systems, Inc., 1998 WL 474099, *1 (N.D. Ill. 1998).

The work

product doctrine is codified in Federal Rule of Civil Procedure
26(b)(3) as follows:
Ordinarily, a party may not discover 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). But, subject to Rule 26(b)(4), those
materials may be discovered if: (i) they are
otherwise discoverable under Rule 26(b)(1);
and (ii) the 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. . . . If the court orders discovery of
those materials, it must protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
Rule 26(b)(3)(A)-(B)

See also Boyer v. Gildea, 257 F.R.D. 488, 490 (N.D. Ind. 2009)
(applying the Rule).

To meet the qualified immunity from discov-

ery based on Rule 26(b)(3), the materials sought must be: "(1)
documents and tangible things; (2) prepared in anticipation of
litigation or for trial; and (3) by or for a party or by or for a

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party's representative." Boyer, 257 F.R.D. at 490 (citing Wright,
Miller & Marcus, 8 Federal Practice & Procedure §2024 (3d ed.)).
The threshold determination is whether the documents sought
to be protected were prepared in anticipation of litigation or
for trial. Caremark, Inc. v. Affiliated Computer Services, Inc.,
195 F.R.D. 610, 614 (N.D. Ill. 2000). The test for each document
is "whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly
be said to have been prepared or obtained because of the prospect
of litigation." Caremark, Inc., 195 F.R.D. at 614 (citing and

quoting Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d
1109, 1118–19 (7th Cir. 1983)). Precedent is clear that eventual
litigation does not ensure protection of all materials prepared
by attorneys — the "remote prospect of future litigation" does
not suffice to bring the work product doctrine into play. Binks

Mfg. Co., 709 F.2d at 1120. Materials or investigative reports
developed in the ordinary course of business do not qualify as
work product. The material or report must have come into existence because of the litigation or because of an existing articulable claim likely to lead to litigation can the doctrine apply.

Caremark, Inc., 195 F.R.D. at 614.
In its reply brief, Hartford withdrew its objection to the
Guidance Software Inc.’s subpoena and the second supplemental

11

production request, limiting the dispute to the Fisher Kanaris
subpoena.

Hartford originally objected to the subpoena as

untimely.

However, the district court re-opened discovery to

allow Illiana to perform all discovery it found necessary as a
sanction for Hartford’s uncooperativeness during the initial
discovery period.

The district court did not limit the scope of

discovery in its order.

Therefore, Illiana’s request is both

timely and within the scope of the district court’s order.
Hartford’s motion, on the other hand, did not conform with
proper procedure.

Rule 26 requires that a motion for a protec-

tive order "must include a certification that the movant has in
good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court action."

Rule 26(c)(1).

Local Rule 37.1 requires that such

certification reciting the date, time, and place of the conference or attempted conference and the names of all persons participating "shall be made in a separate document filed contemporaneously with the motion."

Local Rule 37.1(c).

Hartford did not file a certificate conforming with this
requirement, and its motion may be denied on this ground alone.
Given the tumultuous nature of past discovery and Hartford’s
persistent refusal to provide the documents irrespective of how
many times the court has ordered production, it is unlikely that

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any attempted conference would have led to an amicable resolution.

Rather than deny Hartford’s motion without prejudice and

wait for the motion to be re-filed with the proper certificate,
the court will address the issues on the merits.
Hartford first objects to Illiana’s request for all documents in File No. 05-1155 that were not previously produced and
all correspondence between Hartford and Fisher Kanaris.

Hartford

represents that all non-privileged documents previously were
produced and that the request seeks documents prepared after
litigation commenced.

Illiana’s requests were limited specifi-

cally to the documents Hartford did not produce previously, and
therefore, does not request duplicate information.

Given Hart-

ford’s adamant refusal to cooperate with discovery, it should be
of no surprise that Illiana has made repetitive requests.

More-

over, if Hartford would have followed the proper procedure and
discussed its opposition to Illiana’s discovery requests with
Illiana prior to filing the motion, it is likely that the parties
could have reached an agreement on limiting the discovery requests to the documents in existence prior to December 7, 2010.
Any documents created by Hartford’s attorneys after the
commencement of litigation arguably were prepared for the purpose
of defending the litigation and fall within the attorney-client
privilege.

Rather than deny Illiana’s requests in their en-

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tirety, the court will limit Illiana’s first three requests to
the documents in existence prior to December 7, 2010, when the
law suit was commenced.

Illiana similarly restricted the remain-

der of its requests to this time span, and if Hartford would have
conferred with Illiana as it was obligated to do, it is likely
that Illiana would have conceded to this limitation.
Hartford objects to many of Illiana’s remaining requests as
demanding privileged information.

However, Hartford has not

identified which privilege it intends to assert or shown that the
intended privilege is applicable.

In its brief, Hartford refers

to Hartford Financial Services Group, Inc., 717 N.E.2d at 1235,
for the proposition that pre-suit communications between an
insurer and legal counsel regarding an insurance claim are
protected by the attorney-client privilege.

The court normally

would assume that Hartford intended to raise the attorney-client
privilege based on its reliance on Hartford Financial.

However,

upon review of the documents addressed in its brief and the
privilege log submitted as an exhibit to its motion, the documents identified are reported to contain attorney mental impressions, rather than communications exchanged between Fisher
Kanaris and Hartford.

In fact, Hartford admits that Fisher

Kanaris never gave many of the requested documents to it or
included them in the claims file.

14

Specifically, Illiana’s Request Numbers 4, 5, and 6, sought
all of the Kanaris, Katalinc, and Hahn documents relating to
Illiana’s claim that were in existence prior to December 7, 2006;
Request No. 10 sought copies of the annotation of various records
from Illiana and iHealthcare prepared on or about October 30November 1, 2005, by Brian Hahn; and Request No. 11 sought "all
copies of the claim chronology based upon analysis of correspondence and claim documents produced by insured" prepared by Pugliese on or about February 2, 2005.

These requests seek docu-

ments prepared by the Fisher Kanaris attorneys rather than
communications exchanged between Fisher Kanaris and Hartford and
are more amenable to the work product privilege.

Even if Hart-

ford intended to assert the attorney-client privilege, it did not
show that any of these requests sought information concerning the
exchange of communication between Hartford and Fisher Kanaris,
and it did not satisfy its burden to show that the attorneyclient privilege applied.
Hartford similarly failed to show that the documents sought
were prepared in anticipation of litigation and subject to the
attorney-client privilege.

There must be more than a possibility

that future litigation might ensue.
1120.

Binks Mfg. Co., 709 F.2d at

The privilege log and Hartford’s brief identified the

documents Illiana requested as those used in preparing a coverage

15

determination.

It is difficult to believe that litigation was

imminent when coverage was yet to be determined.

Moreover, the

documents were prepared ten months before Illiana filed its
complaint.

In the complaint, Illiana explained that it had not

received a coverage determination during the two year pendency of
its claim, and to avoid expiration of the time allotted by the
parties' contract to file a lawsuit, Illiana filed its complaint.
Illiana did not anticipate litigation until it recognized that it
was not going to receive a coverage determination prior to the
expiration of the time it was allotted to file a law suit.
Hartford has shown nothing more than at the time the documents
were created, there was a remote prospect litigation might ensue
if it denied coverage.

Binks Mfg. Co., 709 F.2d at 1120.

Again,

Hartford carried the burden of establishing the privilege and has
failed to show that the documents meet the criteria to shield
them from discovery.
The court previously rejected Hartford’s assertion of
privilege with respect to the documents contained in the claim
file.

Hartford attempts to reformulate the same argument that

the court has denied on numerous occasions by arguing that the
court did not determine whether the Fisher Kanaris attorneys
other than Pugliese were acting as claims adjusters rather than
attorneys, and that the documents now requested were not kept in

16

the claims file.

However, the court did not limit its orders to

the work produced by Pugliese.

Rather, the court explained that

the law firm of Fisher Kanaris was performing the work of an
outside claims adjuster during the investigation.
At the hearing on Illiana’s motion for sanctions [DE 214],
Judge Van Bokkelen was careful to question Hartford to avoid
ambiguity.

Judge Van Bokkelen asked Hartford whether all docu-

ments had been produced irrespective of whether they were kept as
part of the claim file or independently.

Hartford answered

affirmatively, yet it now identifies new documents and attempts
to shield them from production because they were not part of the
claim file.

Hartford already has been ordered to produce the

documents and instructed that where they were kept is irrelevant
to the final analysis.
Hartford raises an additional objection to Request Number
11, arguing that the document is no longer in existence in the
form it originally was created on February 2, 2006, but it does
not explain why the document is protected from discovery in its
current form.

Hartford bears the burden of showing the document

is shielded from discovery and has failed to satisfy that burden.
In Request Nos. 7 and 8, Illiana sought documents that
existed prior to December 10, 2006, and mentioned Kurt Harms and
Guidance Software, Inc. in relation to Illiana’s claim against

17

Hartford. Hartford objects that it produced all documents related
to Kurt Harms and is in the process of producing the Guidance
Software documents.

Given Hartford’s reluctance to produce

discovery and its attempts to hide information, it is not surprising that Illiana has made duplicative requests in an effort
to insure it received all the information it is entitled to.
Hartford is not required to produce documents related to Kurt
Harms that previously were produced, however, any documents that
are in any way related to Kurt Harms, concern Illiana’s claim in
any capacity, and existed prior to December 10, 2006, must be
produced irrespective of what additional privileges Hartford
believes may apply or where they were kept.

Moreover, Hartford

cannot seek to strike a request for documents that Hartford has
yet to produce and acknowledges are discoverable.

Hartford is

DIRECTED to produce the documents related to Guidance Software.
Request No. 12 asks for all copies of the draft report from
a computer consultant regarding analysis of the server analyzed
by Pugliese on July 20, 2006.

Hartford disclaims knowledge of

the report requested and states that it produced the Contech
files and is in the process of producing the Guidance Software
documents.

Given Hartford’s reluctance to produce discovery, the

court finds it necessary to instruct Hartford to produce all

18

documents in the Fisher Kanaris files that predate December 7,
2006.

Hartford must conduct a diligent search for this report.
Finally, Hartford objects to Request No. 13, which asks for

a copy of the summary of Krause’s examination under oath prepared
by Kevin Pugliese on or about September 10-14, 2006. The letter
never was sent to Hartford and is not a communication protected
by the attorney-client privilege.

Instead, Hartford represents

that the summary contains mental impressions of its attorney and
is shielded from discovery by the work product privilege.
Illiana has access to the transcript of Krause’s EUO, and it is
not clear why Pugliese’s summary is necessary.

The summary was

made close to the date this matter was filed, and the court
assumes litigation was more imminent at the time the summary was
prepared.

The court will deny this request and GRANT Hartford’s

motion on this limited issue.
_______________
Based on the foregoing, the Motion to Quash Plaintiff’s
Subpoenas and Request for Protective Order [DE 213] filed by the
defendant, Hartford Fire Insurance Co., on October 28, 2011, is
GRANTED IN PART and DENIED IN PART; the Motion for Leave to
Submit Surreply Brief in Opposition to Hartford’s Motion to Quash
and Request for Protective Order [DE 221] filed by the plaintiffs, Illiana Surgery and Medical Center, LLC, and iHealthcare,

19

Inc., on December 12, 2011, is GRANTED; and the Motion in Opposition to Plaintiff’s Motion for Leave to Submit a Surreply Brief
in Opposition to Hartford’s Motion to Quash [DE 222] filed by
Hartford on December 16, 2011, is DENIED.

Hartford must produce

all information Illiana requests with the exception of documents
requested in Request Numbers 1-3 created after December 7, 2010,
and Pugliese’s summary of Krause’s examination under oath.
ENTERED this 7th day of March, 2012

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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