Medical Assurance Company Inc The v. Weinberger MD et al

Filing 522

OPINION AND ORDER, GRANTING IN PART AND DENYING IN PART 423 MOTION to Compel Deposition Testimony and Exclude Evidence filed by Stephen W Robertson; GRANTING with respect to the issues the parties identified as remaining in dispute and DENYI NG AS MOOT with respect to the remaining issues re 427 MOTION to Compel Production of Withheld Documents and Exclude Evidence filed by Stephen W Robertson, DENYING 462 MOTION to Strike [DE423] and [DE425] filed by Medical Assurance Company Inc The, DENYING 467 MOTION to Strike [DE427] and [DE428] filed by Medical Assurance Company Inc The, DENYING 494 MOTION to Strike [DE465] and [DE466] filed by Medical Assurance Company Inc The,.. Signed by Magistrate Judge Andrew P Rodovich on 2/7/13. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
THE MEDICAL ASSURANCE COMPANY,
INC.,
Plaintiff
v.
MARK S. WEINBERGER, M.D.,
et al.,
Defendants

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:06 cv 117

OPINION AND ORDER
This matter is before the court on the Motion to Compel
Deposition Testimony and Exclude Evidence [DE 423] filed by the
defendant, the Indiana Patient’s Compensation Fund (PCF), on May
21, 2012; the Motion to Compel Production of Withheld Documents
and Exclude Evidence [DE 427] filed by PCF on May 21, 2012; the
Motion to Strike Docket Entries 423 and 425 [DE 462] filed by the
plaintiff, Medical Assurance, on July 16, 2012; the Motion to
Strike Docket Entries 427 and 428 [DE 467] filed by Medical
Assurance on July 16, 2012; and the Motion to Strike Docket
Entries 465 and 466 [DE 494] filed by Medical Assurance on
September 6, 2012.
For the reasons set forth below, the Motion to Compel
Deposition Testimony and Exclude Evidence [DE 423] is GRANTED IN
PART and DENIED IN PART; the Motion to Compel Production of Withheld Documents and Exclude Evidence [DE 427] is GRANTED with

respect to the issues the parties identified as remaining in
dispute and DENIED AS MOOT with respect to the remaining issues;
and the Motion to Strike Docket Entries 423 and 425 [DE 462], the
Motion to Strike Docket Entries 427 and 428 [DE 467], and the
Motion to Strike Docket Entries 465 and 466 (DE 494] are DENIED.
Background
This matter arises from a contract dispute concerning
liability for approximately 353 pending medical malpractice
claims against Dr. Mark S. Weinberger and the business entities
he owned (the Weinberger defendants). At the time the case was
filed, Weinberger could not be located but subsequently was found
and arrested on federal criminal charges.
Medical Assurance seeks a declaratory judgment that it does
not owe a duty to indemnify or defend the Weinberger defendants
in the underlying malpractice cases because Weinberger did not
participate in his defense as required by the insurance policy.
To succeed, Medical Assurance is required to demonstrate that it
was prejudiced by Weinberger’s disappearance and lack of cooperation, in part due to the pending criminal charges.
On January 13, 2011, Medical Assurance filed a motion for
summary judgment.

Some of the medical malpractice defendants,

the Verhoeve defendants, filed a motion for summary judgment
regarding the aggregate limits of the underlying insurance

2

policies the following June, and another defendant, PCF, filed a
motion for partial summary judgment on August 3, 2011.

Due to

extensions and discovery disputes, the motions were dismissed
pending completion of discovery.
After the court resolved a series of discovery disputes, PCF
filed the present motions, asking the court to compel a variety
of discovery responses.

The court held a status conference on

November 30, 2012, at which the parties informed the court they
would attempt to resolve some of the disputes independently.

On

December 21, 2012, the parties notified the court that they
remained in disagreement over certain questions posed at the
deposition of David Walton, a claims specialist employed by
Medical Assurance.

Weinberger and Medical Assurance objected to

the discovery requests on the grounds of attorney-client and work
product privileges, arguing that much of Walton’s information was
derived from conversations with the attorney who was representing
Medical Assurance and Weinberger in the underlying malpractice
suits, James Hough.

The parties also dispute whether certain

documents that were attached to a letter notifying Weinberger of
the malpractice lawsuits are subject to production.
Discussion
After the November 30, 2012, status conference, the parties
met and conferred with regard to the pending discovery motions.

3

PCF agreed to withdraw its motion to compel and exclude evidence
with the exception of its request to compel responses to certain
questions posed to David Walton at his deposition.

The court

reads this as a blanket agreement to withdraw PCF’s motion to
exclude evidence and strike Purdy’s affidavit in its entirety and
portions of Walton’s and Bodkin’s affidavits.

To the extent that

PCF does not withdraw these requests, its motion both violates
Local Rule 7.1 because it requests multiple forms of relief which
should have been requested in separate motions, and is premature
because Medical Assurance’s motion for summary judgment has been
stricken and Medical Assurance currently is not asserting the
facts that PCF seeks to exclude.

If the court were to rule on

this issue at this time, it would amount to an advisory opinion.

See People of State of Ill. ex rel. Barra v. Archer Daniels
Midland Co., 704 F.2d 935, 941 (7th Cir. 1983)("The term 'advisory opinion' is often just a conclusion; it is what you call a
decision that does not resolve an actual case or controversy.").
Turning to PCF’s motion to compel, 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."
Civil Procedure 26(b)(1).

Federal Rule of

For discovery purposes, relevancy is

4

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 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,

5

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.
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.,

6

281 F.3d 676, 681 (7th Cir. 2002))(internal quotations and citations omitted).

See also Hunt v. DaVita, Inc., 680 F.3d 775, 780

(7th Cir. 2012)(explaining that the district court has broad
discretion in supervising discovery).
The parties dispute whether the pending discovery disputes
are shielded from production by the attorney-client or work
product privilege.

The attorney-client privilege is the oldest

privilege, recognized by the common law, for confidential communications. 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

v. Bull Data Systems, Inc., 152 F.R.D. 132, 135 (N.D. Ill. 1993)
(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 the 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

7

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 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." Lawless, 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); United States v. White, 950
F.2d 426, 430 (7th Cir. 1991).

The party seeking to establish

the privilege bears the burden of proving all of the requirements
for invoking the attorney-client privilege.

"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.3d at 430 (citing Lawless, 709 F.2d at 487) (internal quotation omitted).

8

"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).

Unlike the

attorney-client privilege, the work product doctrine arises under
federal law, even in a diversity case applying state substantive
law.

Dawson v. N.Y. Life Insurance Company, 901 F.Supp. 1362,

1367 (N.D. Ill. 1995).

The work product doctrine is codified in

Federal Rule of Civil Procedure 26(b)(3)(A) 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.

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

To meet the qualified immunity from

discovery 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

9

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, 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 liti-

gation 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.
F.2d at 1120.

Binks, 709

Materials or investigative reports developed in

the ordinary course of business do not qualify as work product.
If the material or report came into existence because of the
litigation or because of an existing articulable claim likely to
lead to litigation, then the doctrine can apply.
F.R.D. at 614.

10

Caremark, 195

With respect to insurance claims, a document generated or
obtained by an insurer is entitled to the protection from discovery if the document can fairly be said to have been prepared or
obtained because of the prospect of litigation and not, even
though litigation already may be a prospect, because it was
generated as part of the company's regular operating procedure.

See also Charles Alan Wright & Arthur R. Miller, 8 Federal
Practice and Procedure §2024 (1994).

Claim file documents,

materials that are part of a factual evaluation or investigation
into an insured's claim, if created prior to a final coverage
decision, are presumed to have been prepared in the ordinary and
routine course of the insurer's business and not for litigation,
thus they are not protected by the work-product privilege. See

Harper v. Auto-Owners Insurance Company, 138 F.R.D. 655, 663
(S.D. Ind. 1991). See also Stout v. Illinois Farmers Insurance

Co., 150 F.R.D. 594, 599 (S.D. Ind. 1993). Furthermore, notice
that an attorney has been retained, without additional proof that
the insurer was doing something more than investigating and
processing an insurance claim, is not enough to lead an insurer
to anticipate litigation and claim the work-product privilege.

Henderson v. Zurn Industries, Inc., 131 F.R.D. 560, 570-71 (S.D.
Ind. 1990).

11

PCF took the deposition of David Walton, a Medical Assurance
claims specialist who handled the Weinberger malpractice claims.
Walton claims to have derived his knowledge, in part, from
communications with attorney Hough, the attorney hired to represent both Medical Assurance and Weinberger in defense of the
underlying claims.

Medical Assurance objected to a variety of

questions on the grounds of attorney-client and work product
privilege.1

In response, PCF argued that Medical Assurance

waived its privilege by bringing certain issues into dispute, but
later acknowledged that the tripartite relationship between
Hough, Weinberger, and Medical Assurance extended the privilege
among all three parties, and that Medical Assurance could not
waive the attorney-client or work product privileges on behalf of
the Weinberger defendants.

Britz Fertilizers, Inc. v. Bayer

1

Walton was a licensed attorney employed as a claims specialist for
Medical Assurance. It does not appear that Medical Assurance is asserting
that Walton acted in the capacity of an attorney with regard to either the
attorney-client or work product privileges, but in any case, the record
reflects that his work was limited to that of a claims specialist, and the
court will not consider him an attorney for the purpose of applying the
privileges. See Stout, 150 F.R.D. at 610 ("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."). 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.").

12

Corp., 2009 WL 604940, *3 (E.D. Cal. 2009).

See also Owens v.

Best Beers of Bloomington, Inc., 648 N.E.2d 699, 703 (Ind. App.
1995).

Nonetheless, PCF maintains that the following questions

are not shielded from discovery by privilege and moves the court
to compel Walton to respond:
1. Whether Weinberger has refused to speak
with Walton or Mr. Hough (and whether Walton
or Mr. Hough have tried to speak with
Weinberger) about the following subjects since
his return:
a. Panel opinions issued to date
(Ex. 1, Walton Dep., p. 97 ln. 18 –
p. 98 ln. 7);
b. Whether Walton or Mr. Hough have
"gone over" panel opinions with
Weinberger that have been issued to
date (Ex. 1, Walton Dep., p. 98 ln.
8 – p. 99 ln. 7);
c. Whether Weinberger has refused to
answer questions about his conduct
in any of the cases since his return
(Ex. 1, Walton Dep., p. 99 lns. 817);
d. Whether Weinberger has refused to
review plaintiffs’ panel submissions
as they are received (Ex. 1, Walton
Dep., p. 155 lns. 2-17, p. 164 lns.
3-11);
e. Whether Weinberger has refused to
give Walton insight into the cases
since his return (Ex. 1, Walton
Dep., p. 100 lns. 8-19, p. 182 ln.
22 – p. 183 ln. 2, p. 184 lns. 1624);

13

f. Whether Weinberger has pled the
5th Amendment during his conversations with Mr. Hough (Ex. 1, Walton
Dep., p. 349 ln. 21 – p. 350 ln. 4);
and
g. Whether Weinberger has ever lied
to Walton or Mr. Hough since his
return (Ex. 1, Walton Dep., p. 99
ln. 18 – p. 100 ln. 7, p. 143 ln. 16
– p. 144 ln. 9).
2. Whether Weinberger failed to evaluate the
merits of factual and legal positions concerning his care of the claimants since his return
(Ex. 1, Walton Dep., p. 155 ln. 18 – p. 156
ln. 5).

3. Whether Weinberger has refused to provide
any assistance to Walton that Walton has requested since his return (Ex. 1, Walton Dep.,
p. 164 lns. 12-22).
4. Whether Weinberger has been motivated to
assist Walton in the defense of the claims
since his return (Ex. 1, Walton Dep., p. 165
lns. 3-17; Compare Dkt. 170-1, ¶17 (". . . a
motivated doctor is the single most important
person in the defense of a medical malpractice
case.")).
5. Whether the handwriting on the EKG was
Weinberger’s (Walton Dep. p. 173 ln. 20 - p.
174 ln. 2).
6. Despite its claim that "without Weinberger's assistance, MA has been unable to
determine what radiologic films were actually
performed on each of the patients or what was
discussed with the patients about what is revealed on the radiology films" (Dkt. 170-1,
¶18), Medical Assurance refused to allow Walton to testify whether, with Weinberger’s assistance, it actually can make those determinations. (Ex. 1, Walton Dep., p. 175 ln. 9 –
p. 176 ln. 1). It refused to let Walton say
14

whether Weinberger had assisted Mr. Hough "on
the issue of reviewing radiologic films on the
patients." (Id., at p. 176 ln. 17 – p. 177 ln.
2). It also refused to let Walton say whether
Weinberger had discussions with Mr. Hough
about what Weinberger relayed to his patients
about the radiology studies/films. (Id., at p.
177 ln. 3 – p. 178 ln. 14).
7. Despite its claim that it cannot assess
the reasonableness of Weinberger’s judgment of
the CT scans (Dkt. 170-1), Medical Assurance
refused to allow Walton to say whether Mr.
Hough has discussed CT scans with Weinberger
since his return. (Ex. 1, Walton Dep., p. 178
ln. 21 - p. 179 ln. 12). Walton was also instructed not to answer questions about whether
Weinberger has discussed conservative treatment issues with Mr. Hough (Id., at p. 179
lns. 13-18); whether Weinberger has discussed
the integration of his treatment plan with Mr.
Hough (Id., at p. 179 ln. 19 - p. 180 ln. 10);
and whether Weinberger has been reviewing CT
scans since his return. (Id., at p. 266 lns.
5-11, p. 343 lns. 2-8).

8. Whether Walton had asked Weinberger if
Dr. Han’s allegations were in fact true.
(Walton Dep. p. 345 ln. 20 - p. 346 ln. 2).
9. Whether Walton had access to Weinberger
to ask him questions about statements Weinberger made alleging he was frustrated about
the inability to rebut statements made during
the Boyer trial. (Walton Dep. p. 348 ln. 15 - p. 349 ln. 9).
(Pltf. Br. pp. 11-14)
PCF readily admits that tripartite attorney-relationship
between Medical Assurance, Hough, and the Weinberger defendants
extends the attorney-client privilege among the three parties and
that waiver of the privilege by one does not constitute a waiver
15

by the other party. See Britz, 2009 WL 604940 at *3.

However,

PCF has spent part of its brief arguing that Medical Assurance
waived any claim to the attorney-client and work product privileges prior to making this concession.

Because the parties are

in agreement that the Weinberger defendants maintain the privilege, whether Medical Assurance waived its attorney-client
privilege is irrelevant.

The pending issue left for resolution

is whether PCF’s discovery requests do in fact fall under the
attorney-client privilege.
The attorney-client privilege does not protect disclosure of
the underlying facts and is not a wholesale bar.

In re Aftermar-

ket Filters Antitrust Litigation, 2010 WL 4622527, *9 (N.D. Ill.
Nov. 4, 2010).

Not every communication between an attorney and

his client is protected by the attorney-client privilege.

See

e.g. United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990).
The privilege is limited only to confidential communications made
from a client to an attorney and to most communications from an
attorney to a client that constitute legal advice.
F.2d at 635.

Defazio, 899

However, the attorney-client privilege is not

automatically triggered when the attorney renders legal advice.

Midwestern University v. HBO & Co., 1999 WL 32928, *2 (N.D. Ill.
1999); Johnson v. Rauland-Borg Corp., 961 F.Supp. 208, 210 fn.5
(N.D. Ill. 1997) ("Legal advice, standing alone, does not auto-

16

matically receive protection.") (citing Gen–Probe Inc. v. Amoco

Corp., 1996 WL 264707, *4 n.10 (N.D. Ill. May 16, 1996)).
"[C]ommunications from the attorney to the client should be
privileged only if the statements do in fact reveal, directly or
indirectly, the substance of a confidential communication by the
client.

Johnson v. Rauland-Borg Corp., 961 F.Supp. 208, 210 n.5

(N.D. Ill. 1997) (internal quotations omitted).

See also Mid-

western University, 1999 WL 32928 at *2 ("When a lawyer gives
legal advice to the client it does not automatically trigger the
attorney-client privilege. Rather, statements which would reveal
the substance of the confidential communication are protected.");

Koken v. American Patriot Insurance Agency, 2007 WL 914251, *2
(N.D. Ill. 2007)).

Examples of attorney-client communications

excluded from the attorney-client privilege include communications regarding scheduling, billing, or identification.

Defazio,

899 F.2d at 635; Hueck v. State, 590 N.E.2d 581, 585 (Ind. App.
1992) ("As a general rule, information regarding a client’s
attorney fees is not protected by the attorney-client privilege
because the payment of fees is not considered a confidential
communication between attorney and client."); Schachar v. Ameri-

can Academy of Ophthamology, Inc., 106 F.R.D. 187, 192 (N.D. Ill.
1985).

See also 30 Ind. Law Encyc. Witnesses §42.

17

Additionally, the attorney-client privilege extends only to
communications.

"If a question does not address a communication,

the matter is not protected by the attorney-client privilege."

Owens, 648 N.E.2d at 704-05 (citing Barnes v. State, 537 N.E.2d
489, 490 (Ind. 1989)(question "Did you tell your attorney the
truth about the case?" did not ask for the substance of a communication between attorney and client)).

In Owens, Owens alleged

that his former employer, through its president Robert Haak,
agreed to pay him fifty percent of any money collected from a
lawsuit as compensation for his assistance.

After recovering an

award, Owens was not paid and brought suit against his former
employer.

Owens sought to depose James R. Cotner, the attorney

who he assisted on behalf of his employer.
701.

Owens, 648 N.E.2d at

Owens asked Haak such questions as what certain people,

including Owens, did to assist him in preparing the case, whether
he dis- cussed with Haak who was going to be responsible for
assisting with the trial preparation, and whether he met with
Haak at any other time to discuss preparation and assignment of
responsibility.

Owens’ former employer objected to these ques-

tions, among others, on the ground of attorney-client privilege.

Owens, 648 N.E.2d at 705.

The court rejected the defendant’s

objection, explaining that the answers to those questions were
unrelated to confidential communications and that Owens should be

18

allowed to discover information concerning the agreement derived
from the communications and information regarding the actions
performed by individuals.

Owens, 648 N.E.2d at 701.

Many of the questions posed to Walton do not concern communications between Weinberger or Medical Assurance and the attorney they shared, and more accurately question Weinberger’s conduct.

PCF asked whether Weinberger refused to provide assistance

or answer questions about his conduct, whether his handwriting
was on an EKG, whether Weinberger assisted Hough with reviewing
radiologic film, whether Weinberger ever lied to Hough, and
whether Weinberger refused to review panel submissions.

These

questions closely mimic those in Owens, as they seek to discover
what Weinberger did and did not do, rather than his attempts to
obtain legal advice or the substance of any communications he had
with Hough.

Both in Owens and here, the information sought was

about who assisted in the preparation for litigation and what
role those individuals played.

Owens, 648 N.E.2d at 705.

The

Owens court even acknowledged that an inquiry about whether a
party told his attorney the truth about a case did not ask for
the substance of that communication.

Owens, 648 N.E.2d at 705

(citing Barnes, 537 N.E.2d at 490) (question "Did you tell your
attorney the truth about the case?" did not ask for the substance
of a communication between attorney and client)).

19

Because these

questions seek information about Weinberger’s conduct and what
role he played in the investigation rather than the content of
any discussions, the court finds that Medical Assurance has not
met its burden and demonstrated that the questions implicate the
attorney-client privilege.
PCF also questioned whether Weinberger was motivated to
assist in his defense, which would have been based on Walton’s
opinion from his interactions with Weinberger, rather than on
Medical Assurance or Weinberger’s communications with his attorney.

Walton also was questioned whether he had access to Wein-

berger to ask whether statements Weinberger allegedly made, that
he was frustrated about the inability to rebut statements made
during the Boyer trial, actually were made, not whether Walton
did in fact ask Weinberger or what his response was.

Again,

Medical Assurance has not shown that the discovery requests
necessitate revealing the substance of any confidential communications between Weinberger or Medical Assurance and their shared
attorney.

PCF’s motion is GRANTED on these requests.

Some of the proposed questions present a closer call, such
as whether Weinberger ever pleaded his Fifth Amendment right to
remain silent during his conversations with Hough, gave insight
into the underlying malpractice cases, and evaluated the merits
of the factual and legal positions of the malpractice claimants.

20

Although these questions touch on conversations that may have
taken place, they certainly do not delve into the substance of
the conversations.
If Weinberger ever pleaded his Fifth Amendment right to
remain silent, it could not have been because he was seeking
legal advice, but because he was refusing to respond to a question from his attorney.

Communications from an attorney to the

client are not subject to discovery unless they reveal the
substance of conversations.

Revealing whether Weinberger ever

asserted his Fifth Amendment right, without stating to which
questions he raised it, would not reveal the subject of any
confidential communications.

This question is similar to asking

the attorney whether a specific party ever lied to him, in that
it questions that party’s conduct rather than the substance of
any communications.

Additionally, compelling discovery would not

implicate the purpose of the attorney-client privilege, which is
to encourage open and frank communications for the purposes of
obtaining legal advice.

See Cummins, Inc. v. Ace American

Insurance Co., 2011 WL 1832813, *1 (S.D. Ind. May 2, 2011) (explaining that the purpose of the attorney-client privilege is to
encourage "full and frank communication between attorneys and
their clients and thereby promote broader public interests in the
observance of law and the administration of justice.").

21

The very

nature of the question suggests that Weinberger may not have been
revealing confidential information in pursuit of legal advice.
PCF also asked whether Walton had access to Weinberger to
ask him about statements he made alleging he was frustrated about
the inability to rebut statements made during the Boyer trial.
The question does not ask whether the questions were in fact
asked or answered, rather, it only asks whether Walton had access
to Weinberger and could have asked those questions.

Because the

inquiry does not question the subject of any conversations between Weinberger and Hough or Walton, and is limited to Walton’s
accessibility to Weinberger, Medical Assurance has not demonstrated that the question concerns a communication and is subject
to the attorney-client privilege.
PCF’s questions concerning whether Weinberger ever refused
to give insight on the underlying cases, refused to answer questions about any of his conduct, or failed to evaluate the merits
of factual and legal positions concerning his care of the malpractice claimants bear on whether Weinberger assisted with the
cases.

These questions are generalized and do not inquire into

the specific topics Weinberger and Hough addressed in their
conversations.

Compelling discovery of these questions would not

demand revealing confidential communications.

Rather, these

questions concern the assistance Weinberger provided, which was

22

unrelated to the confidential communications between Hough and
Weinberger.

See Owens, 648 N.E.2d at 701 (holding that questions

concerning the assistance provided in an underlying suit was not
subject to the attorney-client privilege).
The third type of questions PCF asked are those which
question Weinberger’s assistance in the underlying malpractice
cases in relation to specific topics.

For example, PCF asked

whether Weinberger refused to go over panel decisions, whether he
reviewed radiologic films of the patients with Hough, and whether
Weinberger ever discussed CT scans, conservative treatment, or
integration of his treatment plan.

PCF also inquired whether

Walton asked Weinberger if Dr. Han’s allegations were in fact
true.

Although these questions also seek to discover what role

Weinberger played, if any, in assisting with the underlying
malpractice claims, they delve into specific topics Hough and
Weinberger may not have discussed.

It is clear any communica-

tions Hough and Weinberger had on these topics were related to
defending the underlying malpractice claims and were done, if at
all, in pursuit of legal advice.

The proposed deposition ques-

tions touch on the subject of these confidential communications,
and the court will not compel responses.

In short, Walton should

provide responses to the following questions, as numbered above:

23

1 c, e-g, 2, 3, 4, 9.

PCF’s motion is DENIED with respect to the

other requests.
PCF next moves to compel discovery relating to Medical
Assurance’s internal communications regarding its defense and
settlement of the claims.

Specifically, PCF seeks a response to

the following questions:
1. Whether Walton’s supervisor, Jan Harris,
must obtain approval from Darryl Thomas
(Medical Assurance's Chief Claims Officer) to
make a settlement offer (which Medical Assurance acknowledges has been made in Barnes).
(Ex. 1, Walton Dep., p. 225 lns. 6-25).
2. Although Walton admitted that he relays
his thoughts on valuation of the claims to
Harris (Ex. 1, Walton Dep., p. 226 lns.
1-10), Medical Assurance refused to allow him
to answer whether Harris relays his collective thoughts about the case merits up the
corporate ladder to Thomas. (Id. at p. 226
lns. 1-17).
3. While reviewing an entry from the privilege log (See Exhibit 8, Privilege No. 100),
Walton refused to testify whether that consulting expert information he sent to Hunsberger was of the sort he typically sent to
Hunsberger while Hunsberger was his supervisor (until March 2010 before Hunsberger became liaison to coverage counsel). (Ex. 1,
Walton Dep., p. 245 ln. 17 - p. 246 ln. 16).
(Pltf. Br. p. 16)
Medical Assurance argues that the questions intrude upon privileged information because they seek either the direct disclosure
of privileged communications between Weinberger, claims person-

24

nel, or his defense counsel, indirect disclosure through the
impressions or opinions of claims personnel, or the need to
reference privileged documents.
Indiana broadly construes the attorney-client privilege when
applying it to communications between an insurance company and
its attorney.

The privilege applies to communications between an

insurance company and legal counsel concerning the investigation
and validity of the insured’s claim, whether an insured’s loss
fits within the terms of the contract, and discussions of coverage protection.

The relevant inquiry is whether the attorney is

acting in his capacity as an attorney or as either a provider of
simple business advice or outside claims adjuster.
WL 1832813 at *2.

Cummins, 2011

However, a plethora of cases have held that no

attorney-client privilege can be asserted against an insured or
an assignee of an insured in its action against an insurance
company with respect to materials prepared as part of the insured's defense in the underlying action. See Glacier General

Assurance Co. v. Superior Court, 95 Cal.App.3d 836, 157 Cal.Rptr.
435 (Cal.App. 1979) ("To permit the insurer to use the attorney-client privilege to shield from its insured, communications
which relate to the insurer's decision concerning settlement
would be to place the insured in a secondary rather than a
primary position in his relationship with the attorney, seriously

25

eroding the insured's ability to establish that the insurer had
failed in its duty to him.").

See also Simpson v. Motorists

Mutual Insurance Co., 494 F.2d 850, 855 (7th Cir. 1974), cert.
denied, 419 U.S. 901, 95 S.Ct. 184, 42 L.Ed.2d 147 (1974) (finding that the attorney-client privilege did not attach to communication between the insurance company and its attorney as against
the assignee of the insured's claims against the insurance
company); Lorenz v. Valley Forge Insurance Co., 1984 WL 2234
(N.D. Ind. 1984) rev'd on other grounds, 815 F.2d 1095 (7th Cir.
1987) (asserting the proposition that attorney-client privilege
cannot be asserted with respect to materials by insurance-defense
counsel appointed to the defense of an insured in action by
insured against insurer); Athridge v. Aetna Casualty and Surety

Co., 184 F.R.D. 200, 204 (D.D.C. 1998) (discussing the principle
that "when a lawyer represented two persons and they later had a
falling out and one sued the other, neither could claim the
attorney-client privilege . . . . That principle had also been
applied when an insurance company hired an attorney to represent
its insureds. When the insured then sued the insurance company,
the courts had rebuffed any attempts by the insurance company to
claim the attorney-client privilege to prevent its insured access
to the documents that attorney had created when she represented
the insured and the insurance company's common interest in

26

defeating the case brought against the insured. . . . [T]he
courts had applied this principle when the insured assigned
whatever claim she had against the insurance company to the
person who sued the insured in the first place.") (emphasis
added); Dome Petroleum Ltd. v. Employers Mutual Liability Insur-

ance Company of Wisconsin, 131 F.R.D. 63, 68–69 (D.N.J. 1990)
(relying on Seventh Circuit's holding in Simpson and finding that
there is no attorney-client privilege by insurer against subrogee
of insured).
Despite the broad interpretation of the attorney-client
privilege, Medical Assurance has failed to explain how the
discovery questions fall within its protection.

The questions do

not inquire about Weinberger, Walton, or any other Medical
Assurance representative’s communications with an attorney, nor
do they seek production of documents prepared for litigation.
Rather, the questions concern the corporate structure within
Medical Assurance for settling insurance claims.

Even if the

structure for settling claims was derived through communications
with an attorney, such business advice is exempt from the
attorney-client privilege, and discovery seeking information of a
business’s ordinary course of operations is exempt from the work
product privilege.

Allendale, 152 F.R.D. at 136-37, 141.

Addi-

tionally, because this case is a dispute between the insured and

27

insurer, Medical Assurance had the burden to show that the
attorney-client privilege is applicable with respect to materials
prepared as part of the insured’s defense.

Medical Assurance has

made no effort to make such a demonstration and has failed to
satisfy its burden. The court GRANTS PCF’s motion to compel a
response to these inquiries.
PCF next moves to compel responses to questions that it
alleges will help to rebut Medical Assurance’s assertions of
prejudice.

Specifically, PCF makes the following arguments and

moves to compel responses to these questions:
1.

Despite saying he could not fully evaluate the cases, and that he typically
considers prior medical history of
claimants when evaluating claims, Walton
refused to answer whether "each of [the
353 claims] involves a plaintiff with a
different physical history" and whether
they are all "identical" in that regard.
(Walton Dep. p. 115 ln. 14 - p. 116 ln.
24).

2.

Although Walton testified that Weinberger was not "engaged in the process"
of defending the cases, he refused to
say what Weinberger had done (other than
public knowledge) that caused him to
make that assertion. (Walton Dep. p. 95
ln. 20 - p. 96 ln. 25)

(Pltf. Br. p. 19)
Medical Assurance has objected to the questions on the
ground of attorney-client and work product privilege but again
has failed to show how the privilege applies.
28

Other than a broad

assertion that the response may be infused with information
provided by counsel, Medical Assurance and the Weinberger defendants have not explained how compelling responses to these
questions would necessitate revealing privileged communications.
In the first question, PCF asks whether Walton agrees that each
malpractice claimant would have a different physical history.
This questions Walton’s opinion, and although Medical Assurance
states that it may impinge on conversations Walton had with
Medical Assurance’s attorney, Medical Assurance has not shown
that this is necessarily true or why it cannot be answered
without reference to any such conversations.

It appears that

Walton’s response would be based on his review of the claim
files.
The second question seeks the basis of Walton’s opinion on
why he believed Weinberger was not engaged in the defense.
Again, Medical Assurance has not explained why this could not be
responded to based on Weinberger’s conduct rather than by revealing the substance of confidential communications.

Medical

Assurance has failed to satisfy its burden to show that the
attorney-client privilege bars disclosures of the information
sought.
Similarly, the work product privilege prohibits discovery of
documents or tangible things prepared by attorneys in anticipa-

29

tion of litigation.

Materials or investigative reports developed

in the ordinary course of business do not qualify as work product.

If the material or report came into existence only because

of the litigation or because of an existing articulable claim
likely to lead to litigation, then the doctrine may apply.

mark, 195 F.R.D. at 614.

Care-

Neither of PCF’s requests seek produc-

tion of any tangible documents, and even if they did, Medical
Assurance has not explained that they demand documents prepared
by an attorney or representative in anticipation of litigation,
as opposed to documents prepared by Walton when he was acting in
his capacity as a claims adjuster.

See Stout, 150 F.R.D. at 610

(explaining that the attorney-client and work product privileges
will not apply to an attorney acting solely in the capacity of a
claims adjuster).

Claim file documents, materials that are part

of a factual evaluation or investigation into an insured's claim,
if created prior to a final coverage decision, are presumed to
have been prepared in the ordinary and routine course of the
insurer's business and not for litigation, thus they are not
protected by the work-product privilege.

See Harper v. Auto-

Owners Insurance Company, 138 F.R.D. 655, 663 (S.D. Ind. 1991).
See also Stout, 150 F.R.D. at 599.

Furthermore, documents

prepared in anticipation of litigation are not always subject to
privilege in coverage disputes between an insurer and insured.

30

Lorenz, 1984 WL 2234 at *7 ("[W]here two parties are represented
by the same attorneys for their mutual benefit, the communications between the parties are not privileged in a later action
between such parties or their representatives.").
The first question, whether Walton agreed that each of the
malpractice plaintiffs had a different physical history, was
asked in conjunction with whether he considered the medical
history of the claimants when evaluating claims.

This question

is based on Walton’s conduct in evaluating claims, not on his
communications with Medical Assurance’s attorney.

Even if Walton

discussed this matter with Medical Assurance’s attorney at some
point, the law is clear that the privilege does not shield the
facts from discovery.

See Upjohn Co. v. United States, 449 U.S.

383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (explaining that
the attorney-client privilege does not protect the client from
disclosing the facts underlying communications with his attorney).

Moreover, the question seeks Walton’s process in evaluat-

ing the insurance claims, particularly what he did in evaluating
the insurance claims against Weinberger, and not what he prepared
in anticipation of litigation.

Typically, materials that are

part of a factual evaluation or investigation are not subject to
the work product privilege, and Medical Assurance has not demonstrated why allowing Walton to respond to this question would

31

require information beyond the factual evaluation or investigation.

If the question demands consulting any documents, it is

not clear that it would require a review of documents prepared in
anticipation of litigation, rather than those prepared in the
ordinary course of business evaluating the claim.

See Caremark,

195 F.R.D. at 614 (explaining that documents prepared in the
ordinary course of business are not subject to the work product
privilege).

Medical Assurance also carried an additional burden

to show why the privilege should apply in light of the nature of
the suit between the insured and insurer.

See Lorenz, 1984 WL

2234 at *7 (explaining that the attorney-client privilege cannot
be asserted with respect to materials by insurance-defense
counsel appointed to the defense of an insured in an action by
insured against insurer).

Medical Assurance has failed to over-

come any of these hurdles, and the court finds that the work
product privilege does not apply.
With regard to the second question, Medical Assurance has
committed many of the same shortcomings.

It did not explain why

responding would require revealing the substance of any communications Weinberger or Medical Assurance had with an attorney in
pursuit of legal advice, that responding would require production
of documents prepared in anticipation of litigation rather than
documents prepared in the ordinary course of business, or why the

32

privilege should apply in light of the nature of the suit.

Al-

though this question more directly concerns litigation, in that
it asks for the basis of Walton’s opinion that Weinberger was not
engaged in the defense of the malpractice claims as opposed to
his opinion in evaluating claims, without showing that it can
overcome the aforementioned hurdles, the privilege is inapplicable.

The question seeks Walton’s opinion of Weinberger’s con-

duct, which would be derived from his own experience with the
case, not from any documents or discussions.
Next, PCF moves to compel a response to a question concerning Walton’s communications with Hough on the subject of an
ethical screen.

Hough testified that he did not filter any

information he reported to Medical Assurance, believing that
Medical Assurance knew what it could and could not do with the
information it received.

Walton then testified that it was

important for defense counsel to shield from him information
detrimental to an insured’s coverage, but then he refused to
answer whether he expected that Hough would not provide him
information that would adversely affect Weinberger’s coverage.
PCF moves to compel a response to this question.

Additionally,

PCF asks the court to compel Walton to answer whether he withheld
any information he learned or obtained from Hough during his
discussions with outside coverage counsel in the case.

33

Medical Assurance objected to PCF’s question concerning the
type of information Walton believed Hough would not provide him,
arguing that the question calls for a legal conclusion, is protected by the attorney-client privilege, and is irrelevant.

A

deponent must respond unless the question is protected by privilege, violates a limitation ordered by the court, or it is asked
in bad faith, or to annoy, embarrass, or oppress a party.
Federal Rule of Civil Procedure 30(c)(2), (d)(3)(A).

The ques-

tions PCF posed do not concern the content of any communications
Walton had with Hough concerning pending litigation.

Rather,

they seek Walton’s understanding on whether Hough was required to
withhold information and whether Walton himself withheld information.

The very wording of the first question makes it clear that

the response would not reveal confidential communications between
the two parties.

Although the second question concerns whether

Walton ever relayed any information he learned through his
communications with Hough to outside coverage counsel, it does
not seek the content of the communications and is limited
strictly to Walton’s conduct handling for the information.
Medical Assurance has not demonstrated that compelling a response
would necessitate revealing the content of any confidential
communications.

PCF’s motion is granted with respect to these

questions.

34

PCF also moved to compel production of certain documents.
The parties have been able to agree on all requests with the
exception of "Blueprint for Processing a Medical Malpractice
Claim" and "Physician Information to Be Supplied to Assist Your
Defense Counsel."

Walton testified that it was normal procedure

for Medical Assurance to send a letter to its insured when a
medical malpractice complaint was filed.

The blueprint and

physician information sheet were sent as enclosures to inform the
insured of the scope of his cooperation obligations.

Medical

Assurance objects to providing these forms on the grounds of
attorney-client and work product privilege.

In its response

brief, Medical Assurance calls PCF’s request "patently absurd"
and argues that there is ample non-privileged information available.

However, Medical Assurance fails to show how the attorney-

client or work product privilege apply.
It appears that these documents were sent to every insured
who had a claim filed against it in the ordinary course of business.

Neither Medical Assurance nor Weinberger have shown that

the forms were prepared in anticipation of this litigation or
contain confidential communications from Weinberger in an effort
to obtain legal advice.

Forms prepared in the ordinary course of

business as part of the company’s regular operating procedure are
excluded from privilege and must be produced.

35

Caremark, 195

F.R.D. at 614. Because these forms were sent with every claim to
every insured, it is readily apparent that the forms were not
prepared in anticipation of litigation or outside the ordinary
course of business, and Medical Assurance has done nothing to
prove otherwise.

PCF’s motion to compel production of these

documents is GRANTED.
Because the parties notified the court that the above
discovery remained in dispute and stipulated to have the court
resolve these pending issues, the court will not address Medical
Assurance’s motions to strike [DE 462, 467, & 494].
_______________
Based on the foregoing, the Motion to Compel Deposition
Testimony and Exclude Evidence [DE 423] filed by the defendant,
the Indiana Patient’s Compensation Fund (PCF), on May 21, 2012,
is GRANTED IN PART and DENIED IN PART; the Motion to Compel
Production of Withheld Documents and Exclude Evidence [DE 427]
filed by PCF on May 21, 2012, is GRANTED with respect to the
issues the parties identified as remaining in dispute and DENIED
AS MOOT with respect to the remaining isues; and the Motion to
Strike Docket Entries 423 and 425 [DE 462], the Motion to Strike
Docket Entries 427 and 428 [DE 467] filed by the plaintiff,
Medical Assurance, on July 16, 2012, and the Motion to Strike

36

Docket Entries 465 and 466 [DE 494] filed by Medical Assurance on
September 6, 2012, are DENIED.
ENTERED this 7th day of February, 2013

s/ ANDREW P. RODOVICH
United States Magistrate Judge

37