Sowell v. Dominguez et al
Filing
94
OPINION AND ORDER granting 74 Motion to Compel. Defendants are ORDERED to produce the documents contained in the investigation file prepared by Karas Adjusters. Sowell is DIRECTED to file a fee affidavit within 14 days of this order. Signed by Magistrate Judge Andrew P Rodovich on 9/27/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TAMARRA SOWELL,
representative,
for the Estate,
of the heirs of
as personal
)
administrator
)
and on behalf
)
ADEKUNLE ODUMABO,)
)
Plaintiff,
)
)
v.
)
)
ROY DOMINGUEZ, individually and )
in his official capacity as
)
Sheriff of Lake County, Indiana; )
BENNIE FREEMAN, individually and )
in his official capacity as
)
warden of Lake County Jail;
)
SOUTHLAKE CENTER FOR MENTAL
)
HEALTH Southlake Center employees)
DR. LEE PERIOLATE and MANUEL
)
BARRAGAN; Lake County Jail
)
employees OFFICER JANICE HATTON, )
OFFICER LINDA RILEY, SERGEANT R. )
STARKEY, and SERGEANT HUBNER; and)
UNKNOWN EMPLOYEES AND SUPERVISORS)
OF LAKE COUNTY JAIL; AND
)
SOUTHLAKE CENTER FOR MENTAL
)
HEALTH,
)
)
Defendants
)
CASE NO. 2:09 cv 47
OPINION AND ORDER
This matter is before the court on the Motion to Compel
Documents [14] filed by the plaintiff, Tamarra Sowell, on May 2,
2011.
For the following reasons, the motion is GRANTED.
Background
The plaintiff, Tamarra Sowell, brought this action against
the Sheriff of Lake County, the Warden of Lake County Jail,
Southlake Center for Mental Health, and various employees and
supervisors of the Lake County Jail and Southlake after Adekunle
Odumabo hung himself on April 30, 2007, while an inmate at the
Lake County Jail.
Sowell brought suit under 42 U.S.C. §1983 for
violations of Odumabo’s constitutional rights; the Indiana Wrongful Death Statute, Ind. Code §34-23-1-1; and Indiana’s Personal
Civil Liability Under Civil Rights Laws of Employee Acting Within
Scope of Employment, Ind. Code §34-13-4-1.
Sowell alleges that
Odumabo died because the Lake County Jail staff knew Odumabo
should be monitored as a suicide risk but failed to have him
under suicide watch.
Prior to his death, Odumabo was in the custody of the Lake
County Jail.
On April 26, 2007, Odumabo appeared before Magis-
trate Judge Paul R. Cherry in the United States District Court in
Indiana.
During the proceedings, Odumabo repeatedly told the
judge that he wanted to die.
Judge Cherry ordered the Lake
County Jail to place Odumabo on suicide watch.
The next day,
employees of Southlake Mental Health evaluated Odumabo and began
a step-down procedure to remove him from suicide watch.
On April
30, 2007, Odumabo committed suicide.
Lake County is self-insured for liability claims though the
Lake County Self-Insurance Fund, which is under the jurisdiction
of the Lake County Commissioners.
2
Lake County also contracted
with Southlake, a company providing mental health services at the
jail, to indemnify, defend, and hold harmless Southlake, and its
directors, officers, employees, agents, and independent contractors, for all claims arising out of care rendered at the jail by
Southlake employees.
On May 1, 2007, the Lake County Commissioners' attorney,
John Dull, retained Karas Adjusters, an insurance company, to
assist in the investigation of Odumabo’s suicide.
In May 2007,
Manuel Barragan, a Southlake employee who worked at the jail at
the time of Odumabo’s incarceration, gave a statement to Ann
Watkins, an agent of Karas Adjusters, regarding the circumstances
of Odumabo’s death.
Sowell learned about the investigation, but
Barragan refused to disclose the statement, claiming it was
privileged.
Sowell proceeded to file a motion to compel production of
Barragan’s statement.
Barragan and Southlake objected, arguing
that the statement was privileged under Indiana’s insured-insurer
privilege and was attorney work product.
The court granted
Sowell’s motion, holding that the insured-insurer privilege was
inapplicable in federal court, and even if the insured-insurer
privilege applied to federal question suits, the privilege would
not apply to this specific investigation because Karas Adjusters
did not insure Barragan or any of the defendants.
3
The court
further explained that the work-product privilege did not preclude disclosure because Barragan’s statement was not taken by an
attorney, was not taken at a time when there was an articulable
claim, nor did his statement encompass attorney thought processes
or mental conclusions.
Barragan complied with the court’s order and produced the
statement.
Sowell then requested the remaining documents from
the investigation.
Barragan’s counsel informed Sowell that they
did not possess any other documents.
Sowell then issued a
subpoena to Karas Adjusters for its investigation file.
Counsel
for defendants Roy Dominguez and Bennie Freeman informed Sowell
by letter that he objected to the subpoena, but Sowell received
no communication from Karas Adjusters.
Sowell did not speak with
Karas Adjusters until February 1, 2011.
During a phone conversa-
tion, Ted Karas informed Sowell that Karas Adjusters no longer
possessed any of the documents from its Odumabo death investigation because the company had given all of the documents to the
defendants’ counsel.
Throughout the course of discovery, Sowell made many discovery requests, including one to produce all documents relating to
Odumabo, but the defendants never disclosed the investigation
documents.
Sowell further claims that, despite her discovery
requests, the defendants did not even reveal that an outside
4
company had conducted an investigation into Odumabo’s death.
The
defendants disagree, claiming two defendants, Roy Dominguez and
Bennie Freeman, referenced the Karas file in response to Sowell’s
discovery requests.
The defendants represent that they did not
turn over the file in response to Sowell’s discovery requests in
part because Ted Karas had the file and did not turn it over
until one day before Sowell contacted Ted Karas to inquire about
the file.
Upon learning that Karas Adjusters did not have the
file, Sowell’s counsel wrote to defendants' counsel inquiring
about the file.
The defendants’ counsel did not respond to
Sowell’s letter or subsequent e-mail.
The defendants have yet to
produce the investigation file.
Discussion
A party may "obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things."
Federal Rule of Civil Procedure 26(b)(1).
For discov-
ery purposes, relevancy is construed broadly to encompass "any
matter that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in the
case."
Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619
(S.D. Ind. 2002) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
5
U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978)).
Even
when information is not directly related to the claims or defenses identified in the pleadings, the information still may be
relevant to the broader subject matter at hand and meet the
rule’s good cause standard. Borom v. Town of Merrillville, 2009
WL 1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser
Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)).
See also Adams v. Target, 2001 WL 987853, *1 (S.D.
Ind. July 30, 2001)("For good cause, the court may order discovery of any matter relevant to the subject matter involved in the
action."); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)("Discovery is a search for the truth.").
A party may seek an order to compel discovery when an
opposing party fails to respond to discovery requests or has
provided evasive or incomplete responses.
Procedure 37(a)(2)-(3).
Federal Rule of Civil
The burden "rests upon the objecting
party to show why a particular discovery request is improper."
Gregg v. Local 305 IBEW, 2009 WL 1325103, *8 (N.D. Ind. May 13,
2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist.,
235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat.
Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May 13, 2009)(internal
citations omitted); Carlson Restaurants Worldwide, Inc. v.
Hammond Professional Cleaning Services, 2009 WL 692224, *5 (N.D.
6
Ind. March 12, 2009)(internal citations omitted).
The objecting
party must show with specificity that the request is improper.
Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind.
2009)(citing Graham v. Casey’s General Stores, 206 F.R.D. 253,
254 (S.D. Ind. 2002)).
That burden cannot be met by "a reflexive
invocation of the same baseless, often abused litany that the
requested discovery is vague, ambiguous, overly broad, unduly
burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence."
Cunning-
ham, 255 F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors
Corp., 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006))(internal
quotations and citations omitted).
Rather, the court, under its
broad discretion, considers "the totality of the circumstances,
weighing the value of material sought against the burden of
providing it, and taking into account society’s interest in
furthering the truth-seeking function in the particular case
before the court."
Berning v. UAW Local 2209, 242 F.R.D. 510,
512 (N.D. Ind. 2007)(examining Patterson v. Avery Dennison Corp.,
281 F.3d 676, 681 (7th Cir. 2002))(internal quotations and citations omitted).
The defendants first oppose Sowell’s motion, arguing that
she did not meet and confer as required by Rule 37(a)(1) and
Local Rule 37.1(b).
When a party files a discovery motion, he
7
must submit a certification explaining his good faith efforts to
confer and resolve the discovery dispute without seeking court
intervention.
Rule 37(a)(1); Local Rule 37.1. The requirement to
meet-and-confer must be taken seriously, because the court must
find that the parties made a good faith effort to resolve the
dispute before the court can rule on the merits of the
motion.
See Robinson v. Potter, 453 F.3d 990, 994-95 (8th Cir. 2006)
(citing Naviant Mktg. Solutions, Inc. v. Larry Tucker, Inc., 339
F.3d 180, 186 (3rd Cir. 2003).
See Shoppell v. Schrader, 2009 WL
2515817, *1 (N.D. Ind. August 13, 2009) (finding good faith
certification of a single letter and a brief telephone conversation inadequate).
Courts have broad discretion in determining
whether the moving party has satisfied the meet-and-confer component of Rule 37(a)(1) and Local Rule 37.1.
Mintel Intern Group,
Ltd. v. Neerghen, 2008 WL 4936745, *1 (N.D. Ill. Nov. 17, 2008).
In making this determination, the court will consider the totality of the circumstances.
Kidwiler v. Progressive Paloverde Ins.
Co., 192 F.R.D. 193 (N.D. W.Va. 2000).
One correspondence can
meet this requirement when it is detailed and continued contact
likely would not have been successful in resolving the discovery
dispute.
Kidwiler, 192 F.R.D. at 198.
See also Alloc, Inc. v.
Unilin Beheer B.V., 2006 WL 757871, *1 (E.D. Wis. March 24, 2006)
8
(finding that several letters exchanged between the two parties
satisfied the meet and confer requirement of Rule 37).
In light of the ongoing struggle Sowell has encountered
throughout discovery, her attempts to resolve the dispute appear
to satisfy Rule 37 and Local Rule 37.1.
After Sowell subpoenaed
Karas Adjusters, the defendants’ counsel suggested the parties
meet and confer following a deposition scheduled on February 3,
2011, to resolve the discovery dispute.
was moved to February 16, 2011.
However, the deposition
On February 4, 2011, Sowell
proceeded to send the defendants’ counsel a letter outlining her
position and inviting them to respond.
responded.
The defendants never
The parties did not have time to meet and confer
following the February 16 deposition, and because she had not
received a response to her letter, Sowell followed up with an email.
Again, the defendants did not respond.
The defendants
cannot now fault Sowell for her attempts to resolve the dispute
when their own unwillingness to cooperate was the reason why the
parties were unable to meet and confer.
The defendants’ vehement
persistence on raising privileges the court already has determined are inapplicable indicates that further attempts to resolve
the issue would have proven unsuccessful.
Turning to the merits of the dispute, Sowell requests production of all documents in the investigation file prepared by
9
Karas Adjusters.
The record reflects that Dominguez and Freeman
informed Sowell of Karas Adjusters' investigation in response to
Sowell’s document request.
In their response, Dominguez and
Freeman cited the attorney-client and work product privilege and
continued to advocate that these privileges prevent disclosure.
As a general rule, evidentiary privileges are not favored,
and where recognized, must be narrowly construed.
Memorial
Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th
Cir. 1981).
The party claiming the privilege carries the burden
of demonstrating that the document falls within the privilege.
Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 152 F.R.D.
132, 137 (N.D. Ill. 1993).
The attorney-client privilege protects communications
between a client and his lawyer.
"[T]he privilege exists to
protect not only the giving of professional advice to those who
can act on it but also the giving of information to the lawyer to
enable him to give sound and informed advice."
Upjohn Co. v.
United States, 449 U.S. 383, 390, 101 S.Ct. 677, 683, 66 L.Ed.2d
584 (1981).
The Seventh Circuit applies the privilege under the
following principles:
(1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his
capacity as such, (3) the communications
relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclo10
sure by himself or by the legal adviser, (8)
except the protection be waived.
United States v. White, 950 F.2d 426, 430
(7th Cir. 1991)
The party claiming the privilege bears the burden of establishing
that all of the requirements for invoking the attorney-client
privilege are met.
"The claim of privilege cannot be a blanket
claim; it must be made and sustained on a question-by-question or
document-by-document basis."
White, 950 F.2d at 430 (citing
United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983))
(internal quotation omitted).
As an initial matter, the defendants, who carry the burden
of establishing that the requested communications are privileged,
failed to demonstrate that the privilege applies to each document
in the investigation file.
In their response brief, the defen-
dants made a blanket claim of privilege, arguing that the investigation file was protected by privilege in its entirety.
Not
only is the defendants' failure to apply the privilege on a document-by-document basis fatal to their claim, but upon review of
the privilege log the defendants submitted, it is clear that the
documents contained in the file are not protected by the attorney-client privilege.
In the privilege log, the defendants provided the name of
the individual who sent correspondence or made a statement, the
11
recorder or recipient of the communication, and a brief description of the content of the documents.
Most of the documents
listed do not appear to involve correspondence with an attorney
or his staff.
For example, the file contains numerous newspaper
articles, memos exchanged between Ted Karas and Midwest Insurance, and statements given by those with knowledge of the occurrence to agents of Karas Adjusters.
The defendants have not
explained how any of these documents could come within the attorney-client privilege, particularly because they do not involve
correspondence with an attorney.
Looking specifically at the
communications where an attorney was the recipient, the only
documents involve correspondence between Karas Adjusters and an
attorney.
Karas Adjusters is not a party to this suit and does
not have potential liability, and therefore, was not seeking
legal advice through its correspondence.
Moreover, none of the
descriptions of the documents as much as hint at the possibility
that legal advice was sought.
In their response brief, the defendants acknowledged that
the attorney-client privilege likely does not protect the documents in the traditional sense because the investigation was
conducted by agents of Karas Adjusters, not attorneys.
The
defendants ask the court to extend the attorney-client privilege
to communications made by a party to its insurer for the purpose
12
of procuring legal representation.
The court previously has
declined to extend the insured-insurer privilege to federal
proceedings.
Despite rejecting the insured-insurer privilege,
other courts have recognized a narrow exception and have extended
the privilege to information shared with the insurer prior to the
insurer acknowledging a duty to defend when the disclosure was
made to expose potential liability in pursuit of legal representation by the insurer.
Miller v. City of Plymouth, 2011 WL
1740154, *7 (N.D. Ind. May 5, 2011).
In Miller, the court
acknowledged this privilege, but noted that the insurance carrier’s file was not broadly protected by the privilege.
The
court directed the defendant to provide a privilege log showing
that the documents pertained to the insurance carrier’s potential
liability or duty to defend.
The privilege extends only to
disclosures made in pursuit of legal representation.
Miller,
2011 WL 1740154 at *7.
This limited exception is inapplicable because none of the
parties were insured by Karas Adjusters.
For this narrow excep-
tion to apply, Karas Adjusters must have had potential liability
or a duty to defend, and the defendants have not proven either.
Rather, the Lake County Jail, as a self-insured entity, remained
liable for all potential claims and the cost of the defense.
By
agreeing to hold Southlake harmless for all claims arising out of
13
care rendered at the Lake Country Jail by Southlake employees,
Lake County Jail also was obligated to cover Southlake’s costs,
but nothing suggests that Karas Adjusters also assumed any part
of the liability.
Therefore, the attorney-client privilege does
not extend to the documents contained in the investigation file.
Because the attorney-client privilege does not apply in the
traditional sense, the correspondence was not directed to an
attorney, legal advice was not sought, and the limited extension
of the privilege to communications made to an insurer in pursuit
of obtaining legal representation is inapplicable, the attorneyclient privilege does not prevent production of the documents
contained in the investigation file.
The defendants also object to producing the investigation
file on the grounds of work product privilege.
"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 Rule 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 substan14
tial 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
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
15
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.
Mfg. Co., 709 F.2d at 1120.
Binks
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 exis-
tence 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 the instant case, the materials sought meet just one of
the work product doctrine requirements.
The materials are
documents and tangible things, but these materials neither were
prepared in anticipation of litigation nor by the parties representing the defendants.
The defendants have not established that there was an
articulable claim at the time the file was prepared.
Although
Odumabo’s suicide may have been highly publicized, this alone
does not prove that there were threats of litigation and that
litigation likely would ensue.
To fall within the privilege,
there must be more than a possibility of future litigation.
For
example, in Logan v. Commercial Union Ins. Co., 96 F.3d 971, 977
(7th Cir. 1996), the defendants raised the work product privilege
16
to shield documents from discovery that were written after the
plaintiff filed a claim with his workers’ compensation insurance
carrier, the claim was processed, investigated, and denied, and
the plaintiff already had filed suit for benefits with the
workers’ compensation board.
Because Logan had taken substantial
steps toward litigation and the documents at issue concerned the
defendant’s defense strategy, the court determined that an articulable claim existed, sweeping the documents under the work
product privilege.
Logan, 96 F.3d at 977.
Karas Adjusters began its investigation of Odumabo’s suicide
within one month of his death although Sowell’s claim was not
filed until 22 months after Odumabo’s suicide.
The defendants
argue that litigation was inevitable given the extent of publicity following the jail suicide.
However, the defendants cannot
point to any substantial steps, efforts, or specific threats of
litigation that occurred prior to the commencement of Karas
Adjusters' investigation.
Although Karas Adjusters may have been
hired to conduct the investigation based on the remote possibility of litigation, the record is devoid of any suggestion that
Lake County hired Karas in response to the existence of an
articulable claim.
Caremark, Inc., 195 F.R.D. at 614.
See also
Binks Mfg. Co., 709 F.2d at 1120 (holding that the letters at
issue were not protected as work product because they were part
17
of routine investigations and did not contain any threats of
instituting litigation).
The defendants cannot rely solely on
the fact that they feared litigation may ensue from the publicized death without showing that a true threat of litigation
existed at the time of the investigation.
Furthermore, the work product doctrine is limited to documents prepared by or for another party or its representative.
Rule 26(b)(3)(A)-(B); Boyer, 257 F.R.D. at 490 (citing Wright,
Miller & Marcus, 8 Federal Practice & Procedure §2024 (3d ed.)).
Karas Adjusters is not representing any of the parties, does not
have a duty to defend any of the parties, and none of the defendants retained Karas Adjusters to conduct the investigation on
their behalf.
Rather, the Lake County Commissioners, who are not
a party to the suit, retained Karas Adjusters to investigate the
Lake County Jail.
The defendants have not demonstrated that the
Commissioners retained Karas Adjusters to investigate on behalf
of the Lake County Jail, but assuming they did, the Lake County
Jail is not a party to the suit and does not represent any of the
parties.
Although the Lake County Jail agreed to defend and hold
harmless Southlake and its employees, who are defendants, Lake
County Jail does not itself represent the defendants, and the
defendants have further failed to show that the investigation was
conducted on behalf of them or their counsel.
18
Given the defen-
dants’ attenuated relationship to Karas Adjusters and their failure to demonstrate that the investigation was conducted on behalf
of them or their counsel, the court finds that the defendants did
not satisfy their burden to establish the applicability of the
work product privilege.
_______________
Because the defendants failed to show that the investigation
file is subject to either the attorney-client or work product
privilege, the Motion to Compel Documents [14] filed by the
plaintiff, Tamarra Sowell, on May 2, 2011, is GRANTED and the
defendants are ORDERED to produce the documents contained in the
investigation file prepared by Karas Adjusters.
The defendants
are further ORDERED to pay Sowell’s expenses and attorney’s fees
incurred in preparing this motion.
See Rule 37(a)(5) ("If the
motion is granted — or if the disclosure or requested discovery
is provided after the motion was filed — the court must, after
giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's
fees.").
Sowell is DIRECTED to file a fee affidavit within 14
days of this order.
19
ENTERED this 27th day of September, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
20
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