CUMMINS, INC. v. ACE AMERICAN INSURANCE COMPANY et al

Filing 151

ORDER granting in part and denying in part 115 Motion to Compel. (See Order.) Signed by Magistrate Judge Debra McVicker Lynch on 5/2/2011. (LH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CUMMINS, INC.,
Plaintiff,
v.
ACE AMERICAN INSURANCE
COMPANY, et al.,
Defendants.

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CASE NO. 1:09-cv-0738-JMS-DML

Order on Plaintiff’s Second Motion to Compel
This matter came before the court on a motion to compel (Dkt. 115) filed by plaintiff
Cummins, Inc. regarding documents that the defendant insurance companies (the “Insurers”)
withheld from production on attorney-client privilege or work product grounds. The Insurers
also withheld certain other documents on the assertion that they are not relevant to any claim or
defense. The court earlier addressed some issues raised by Cummins’s motion and directed the
Insurers to submit for in camera review by this magistrate judge the documents identified on
their privilege logs. (See Dkt. 132). The court has reviewed the documents and issues this
ruling.
Background
This case concerns insurance coverage to Cummins for losses from a severe flood in
Columbus, Indiana in June 2008, the location of Cummins’s main corporate campus. Cummins
contends it has suffered more than $200 million in losses from the flood. The defendants are 13
insurance companies that provided coverage to Cummins for the period August 1, 2007, through
August 1, 2008, under the terms of materially identical insurance policies that were
“shopped” to the Insurers by Cummins’s insurance broker. The latest information from the

Insurers is that Cummins has been paid $91,948,824 to date on the claims it has submitted to the
Insurers (“Claim”).
Attorney-Client Privilege
In a diversity case where state law provides the substantive rule of decision, privileges
are determined in accordance with the applicable state law. Fed. R. Evid. 501 (in civil actions
where state law supplies rule of decision, privilege “shall be determined in accordance with State
law”); Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1097 (7th Cir. 1987) (Indiana attorneyclient privilege law applied in diversity case). Although the parties have not formally agreed that
Indiana law applies to their insurance coverage and bad faith disputes, the Insurers contend that
Indiana’s attorney-client privilege law applies and Cummins does not contest that view. The
court will apply Indiana attorney-client privilege law to the issues presented.1
Indiana’s attorney-client privilege is an evidentiary privilege codified at Ind. Code § 3446-3-1:
Except as otherwise provided by statute, the following persons shall not be
required to testify regarding the following communications: (1) Attorneys, as to
confidential communications made to them in the course of their professional
business, and as to advice given in such cases.
The privilege is intended 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.’” Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000) (quoting
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The privilege assures a client that it can
provide complete and candid information in confidence to its counsel and counsel in turn can

1

The court also notes that under Indiana’s choice of law rules, the general rule is that an
insurance policy “‘is governed by the law of the principal location of the insured risk during the
term of the policy.’” National Union Fire Ins. Co. v. Standard Fusee Corp., 940 N.E.2d 810,
814 (Ind. 2010) (quoting Dunn v. Meridian Mutual Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005)).
2

provide complete and candid legal advice about the client’s rights and liabilities without fear that
the confidences will be revealed. Lahr, 731 N.E.2d at 482; Hartford Financial Services Group,
Inc. v. Lake Cnty. Park and Recreation Bd., 717 N.E.2d 1232, 1235 (Ind. Ct. App. 1999); Corll
v. Edward D. Jones & Co., 646 N.E.2d. 721, 724 (Ind. Ct. App. 1995) (attorney-client privilege
“applies to all communications between the client and his attorney for the purpose of obtaining
professional legal advice or aid regarding the client’s rights and liabilities”).
Indiana also recognizes that the privilege is not compromised through the sharing of
otherwise confidential communications among clients with a common legal interest. Corll, 646
N.E.2d at 725 (quoting McCormick on Evidence § 91 (4th ed. 1992)) (“[w]hen two or more
persons, with a common interest in some legal problem, jointly consult an attorney, ‘their
confidential communications with the attorney, though known to each other, will of course be
privileged in a controversy of either or both the clients with the outside world’”).
The party relying on the privilege to withhold a communication has the burden to prove
the privilege’s applicability and must do so on a communication-by-communication or
document-by-document basis. Howard v. Dravet, 813 N.E.2d 1217, 1222 (Ind. Ct. App. 2004)
(insurer required to establish attorney-client privilege on a document-by-document basis).
Cummins argues that insurance companies face additional obstacles in asserting the
privilege because communications between an insurer and its counsel that involve the “ordinary
business of insurance companies responding to an insurance claim” are not privileged. (See
Cummins’s reply brief, Dkt. 131, at 15). Cummins contends that because policy coverage
analysis and coverage issues are necessarily part of the business of insurance, an insurer who
obtains advice from a lawyer about coverage necessarily is getting business advice and not legal
advice. (See id. at p. 18; Cummins’s opening brief, Dkt. 116, at p. 9). Cummins thus posits a rule
that an insurance company cannot have privileged communications with lawyers until litigation
3

between the insurer and its insured is imminent and their communications (at least in written
form) would otherwise be protected from disclosure under work product principles.
The court finds Cummins’s position to be extreme and one that cannot be squared with
Indiana cases that have applied the attorney-client privilege to communications between a lawyer
and an insurance company regarding the company’s coverage rights and obligations to its
insured. In Hartford Financial Services Group, Inc. v. Lake Cnty. Park and Recreation Board,
717 N.E.2d 1232 (Ind. Ct. App. 1999), the Indiana Court of Appeals directly addressed whether
the attorney-client privilege protects from disclosure communications by outside legal counsel to
an insurance company in response to the company’s request for legal advice relating to the
investigation and validity of an insured’s claim, when the communications took place before the
insurer and its insured began litigating coverage. The court ruled that the privilege attached and
quoted with approval the comments of the California Court of Appeals that an insurance
company’s hiring of legal counsel to interpret a policy and determine whether the company is
bound for all or some of an insured’s claim is a “‘classic example of a client seeking legal advice
from an attorney.’” Id. at 1236 (quoting Aetna Cas. & Surety Co. v. Superior Court, 153 Cal.
App. 3d 467, 476, 200 Cal. Rptr. 471, 471 (1984)). The court found no indication that Hartford’s
outside counsel was acting in any role other than as an attorney, such as, for example, an outside
claims adjuster or provider of “simple business advice.” Id. The court said: “Simply put,
Hartford retained counsel to investigate [its insured’s] claim, render legal advice and make a
coverage determination under the policy.” Id. The communications between the lawyer and
client leading up to and constituting that advice were privileged. Id. at 1238.2

2

Indiana thus rejects the view espoused in Country Life Ins. Co. v. St. Paul Surplus Lines,
Inc., 2005 WL 3690565 (C.D. Ill. Jan. 31, 2005), that an attorney who advises an insurance
company client whether the facts of an insured’s loss fit within various terms of the policy is
acting as a claims adjuster. Id. at *7. The statement in OneBeacon Ins. Co. v. Forman
4

Howard v. Dravet, 813 N.E.2d 1217 (Ind. Ct. App. 2004), also addresses the attorneyclient privilege in the context of insurer and attorney communications regarding an insurer’s
coverage obligations. An insurance company was served with a documents subpoena requesting
its entire claims file. The trial court granted the insurer’s motion to quash the subpoena on the
ground that all documents in its claim file necessarily were protected from disclosure by the
attorney-client privilege or work product doctrine because the insurer had hired outside counsel
to advise it regarding the insurer’s coverage obligations on the claim. The Court of Appeals
reversed, finding that the “evaluation letter” written by outside counsel to the insurer contained
legal advice and “is protected by the attorney-client privilege because it involved confidential
communications,” but that the existence of that letter was not sufficient to make every other
document in the claim file privileged. Id. at 1222. For these other documents, the insurer was
obligated to establish a privilege from disclosure on a document-by-document basis. Id.
The Insurers contend (with affidavits in support) that their outside counsel, lawyers with
the Fisher Kanaris firm, were hired “to provide legal counsel and advice,” were engaged only as
“legal counsel,” did not make the decisions relating to coverage, and never provided any claims

Internat’l, Ltd., 2006 WL 3771010 at *5 (S.D.N.Y. 2006), that reports from coverage counsel
that help an insurer make a coverage decision are not protected from disclosure, is also
inconsistent with Indiana law. Moreover, the comments in these two cases focused on work
product principles and not the attorney-client privilege. See Country Life, 2005 WL 36980565 at
*7; OneBeacon, 2006 WL 3771010 at *5. And later cases from these states indicate that the
attorney-client privilege protects from disclosure communications by an attorney to an insurance
company about whether a claim falls within the scope of a policy’s coverage. See LagesteeMulder, Inc. v. Consolidated Ins. Co., 2010 WL 4781461 at *1 (N.D. Ill. Nov. 17, 2010) (general
rule under Illinois law is that “communications between an insurer and its coverage counsel are
privileged”; the lawyer sheds his lawyer role only when he actually makes the final coverage
decision); 105 Street Assoc, LLC v. Greenwich Ins. Co., 2006 WL 3230292 at *3 (S.D.N.Y.
2006) (communications between insurer and coverage counsel consisting of legal advice and
opinion are protected by attorney-client privilege).
5

adjustment services. (See, e.g., Affidavit of Raymond F. Charleston, Dkt. 129).3 Based on that
testimony, the Insurers contend that the communications between them and Fisher Kanaris
lawyers and staff regarding the Insurers’ rights and obligations vis-à-vis Cummins’s insurance
claim are protected from disclosure by the attorney-client privilege. Cummins doubts that Fisher
Kanaris acted only as legal counsel, argues that to the extent Fisher Kanaris gave advice about
the Insurers’ coverage obligations, it was not legal advice, and demands more proof that Fisher
Kanaris did not have a role in claims adjusting. Cummins points to another case in which Fisher
Kanaris lawyers were shown to have acted other than as legal advisors and their
communications were ordered to be produced. But unlike the situation here, in that and other
similar cases, there was evidence tending to show that the lawyers were hired to, and did,
perform typical claims adjustment functions.
In Illiana Surgery and Medical Center LLC v. Hartford Fire Ins. Co., 2010 WL 4852459
(N.D. Ind. Nov. 18, 2010), Hartford had hired a lawyer at Fisher Kanaris to conduct the
insurance examinations the insureds were required to provide to support their property damage
claim. The lawyer attended inspections of the insured’s facilities. The lawyer never provided a
coverage opinion. 2010 WL 4852459 at *3. The court found that the functions performed by
the lawyer were functions that a claims adjuster typically performs. The lawyer did not attend to
functions—like providing an opinion regarding coverage—that a lawyer typically might
perform. Id. In Irving Materials, Inc. v. Zurich American Ins. Co., 2007 WL 4616917 (S.D.
Ind. Dec. 28, 2007), the insurance company had hired outside legal counsel “to help handle and
adjust the claims because of the high volume of claims at issue.” Id. at *2. The insurance
3

Mr. Charleston is an Assistant Vice President-Regional Claims Manager for defendant
Liberty Mutual Fire Insurance Company. (Dkt. 129, ¶ 1). Affidavits of representatives of the
other defendant insurers were submitted; those affidavits provide substantially identical
testimony as Mr. Charleston’s affidavit regarding the hiring of Fisher Kanaris and the firm’s role.
(See, e.g., Dkts. 123-9, 123-10, 126, 127, 128).
6

company’s adjuster could not provide any information regarding claims that he supposedly had
handled, and testified that the lawyer had made the claims calculations. Indeed, the main claims
files were kept at the lawyer’s office, and not at the insurance company. The court found that
although some communications between the lawyer and the insurance company were attorneyclient privileged communications, not all of them were. Id. at *4 (“The attorney-client privilege
can, however, be invoked for information pertaining to general coverage issues (in contrast with
the specific handling of the underlying claims) and other legal advice”). The lawyer was
required to provide testimony, and produce any documents she had, regarding claims adjustment,
but was not required to produce any documents “pertaining to coverage issues or any other nonclaims-adjustment legal advice.” Id. at *5.
There is no evidence in this case that Fisher Kanaris lawyers took on claims adjustment
functions for Cummins’s Claim, and Cummins does not point to any. The evidence indicates
that the Insurers collectively hired Crawford Technical Services to oversee and conduct the
claims adjustment functions. Cummins does not point to any gap in the work performed or
provided by Crawford Technical Services that would suggest that claims adjustment (as opposed
to claims coverage) was conducted by lawyers whose work is being hidden from Cummins’s
view.
Based on the above analysis and the court’s in camera review of the documents that the
Insurers have withheld from discovery on attorney-client privilege grounds, the court finds that
the Insurers’ privilege objection is well-founded as to the following documents:

7

Category Doc. No.

Brief Description/Explanation

AC1, AC 2, AC3,
Communications with or from, or about communications with, counsel
AC4, AC8, AC9,
at Fisher Kanaris regarding hiring, policy issues, or investigation.
AC14, AC17, AC18,
AC19, AC20, AC21,
AC22, AC23, AC25,
AC26, AC27, AC28,
AC29, AC30, AC31,
AC32, AC35, AC36,
AC37, AC38, AC39,
AC43, AC44, AC45,
AC46, AC47, AC48,
AC49, AC50, AC51,
AC52, AC53, AC54,
AC56, AC57, AC58,
AC59, AC60, AC61,
AC62, AC63, AC64
AC65, AC66, AC67,
AC68, AC69, I1, I2,
I3, I4
ACS1, ACS2,
Communications with or from, or about communications with,
ACS3, ACS4,
counsel at Clausen Miller regarding subrogation issues.
ACS6, ACS7,
ACS8, ACS9, ACS10,
ACS11, ACS12
D1

Draft declaratory judgment complaint.

I7, I8

Communications regarding declaratory judgment complaint.

H2, H4, H6

Notes of communications with counsel.

The Insurers have not satisfied their burden to show that the following documents (or
portions thereof) are protected from disclosure by the attorney-client privilege:
Category Doc. No.

Brief Description/Explanation

AC5

Second email from Mr. Ezequiel, regarding communication
with Cummins is not privileged; must be produced; may redact top email
on first page.

8

AC6

Top email from John E. Roberts may be redacted as privileged.
Remainder of document regarding scheduling of meeting is not
privileged and must be produced.

AC7

Email and attachment from Mr. Ezequiel regarding claims
adjustment matters are not privileged and must be produced.

AC10, AC11, AC12, Email strings regarding setting of meetings. None privileged.
AC13,
AC24

First two emails, on page WH013 and top of WH013.1 regarding
setting of meeting not privileged and must be produced.

AC34

Email regarding non-privileged document.

AC40

Top email and referenced Fisher Kanaris document may be redacted as
reflecting attorney-client privileged communication. Second email
(10/1/2008) and other attachments regarding claims adjustment specifics
not privileged and must be produced.

AC41, AC42

Email strings regarding setting of meetings. None privileged.

AC55

Top email on page GLCWH036 may be redacted as privileged
communication with counsel.

ACS5

Communication does not concern legal matters.

I5, I6

Does not involve communication with outside counsel; matters discussed
concern business matters rather than legal advice or communications.

C38

Communication does not concern matters for which legal advice sought
or given.

V3

No indication that communication concerns legal matters.

H1

Handwritten notes of meeting before involvement of legal counsel.

H3

Handwritten notes of meeting primarily concerning typical
claims adjustment matters.

H5

Handwritten notes of meeting concerning claims
adjustment matters.

9

Work Product Doctrine
The Insurers’ ability to withhold documents based on the work product doctrine is
governed by federal law. Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 658 (S.D. Ind.
1991). The work product doctrine protects from disclosure (1) documents and tangible things
(2) prepared in anticipation of litigation or for trial (3) by or for a party or its representatives.
Fed. R. Civ. P. 26(b)(3). The party asserting work product protection for any document bears the
burden to establish that the document meets the definitional requirements for work product.
Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996).4
Applying the work product doctrine in first-party insurance coverage dispute cases can be
challenging because it is difficult to separate documents that an insurance company or its
representatives prepared as part of the normal course of the insurance business from documents
prepared for purposes of litigation with its insured. See Harper, 138 F.R.D. 655 (S.D. Ind. 1991)
(containing detailed discussion for applying the anticipation of litigation factor in insurance
coverage litigation); Goodyear Tire and Rubber Co. v. Chiles Power Supply, Inc., 190 F.R.D.
532, 535 (S.D. Ind. 1999) (“Because an insurer’s business is to investigate claims that may or
may not result in litigation, application of the work-product privilege to insurance claims
investigations has been frequently litigated”). Moreover, in the insurance context, the same
document can serve both litigation and ordinary business purposes. Harper, 138 F.R.D. at 661
n.2.
4

Even if materials otherwise merit work production protection, production may be
required where the discovering party demonstrates that it has substantial need for the materials
and cannot, without undue burden, otherwise obtain their substantial equivalent. Fed. R. Civ. P.
26(b)(3); Logan, 96 F.3d at 976. No amount of substantial need and burden will overcome work
product protection of those portions of documents containing opinion work product, meaning the
“mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). In addition, work product
protection can be waived, including for opinion work product. See generally Fed. R. Evid. 502.
The matters in dispute on Cummins’s second motion to compel do not involve these principles.
10

The Seventh Circuit teaches that documents are prepared “in anticipation of litigation”
for purposes of Rule 26(b)(3) where the “‘primary motivating purpose behind the creation of a
document or investigative report [is] to aid in possible litigation.’” Binks Mfg. Co. v. National
Presto Industries, Inc., 709 F.2d 1109, 1118 (7th Cir. 1983) (quoting Janicker v. George
Washington University, 94 F.R.D. 648, 650 (D.D.C. 1982)). See also Stout v. Illinois Farmers
Ins. Co., 852 F. Supp. 704, 706 (S.D. Ind. 1994) (for document to fall within work product
doctrine, “it must pass the ‘primary motivating purpose’ test” discussed in Binks).
Many courts, including this one, have used presumptions in first-party insurance
coverage cases to assist the parties and the court in distinguishing a document whose creation
was primarily motivated by the prospect of litigation between the insurer and insured from one
that would have been created in the absence of the prospect of litigation. In Harper, Magistrate
Judge Foster ruled that a document prepared before an insurer makes a final decision on its
insured’s claim and is part of the factual inquiry or evaluation of the claim is not work product
because “anticipation of litigation is presumed unreasonable under [Rule 26] before a final
decision is reached on the claim.” 138 F.R.D. at 663. A document prepared after claims denial
is presumed to be work product. Id. These presumptions may be overcome “by specific
evidentiary proof of objective facts that a reasonable anticipation of litigation existed when the
document was produced. . . .” Id. at 663. See also Stout, 852 F. Supp. at 708 (focus must
always be on “actual purpose for which a document was created”; “At the very least, an insurer
must show a critical factor that made it anticipate litigation. . . and offer specific facts
demonstrating that the critical factor did indeed make the insurer deal with the insured in a
different way”) (emphasis in original).
Based on Judge Foster’s analysis in Harper, 138 F.R.D. 655 (S.D. Ind. 1991), and his
analysis in Stout v. Illinois Farmers Ins. Co., 150 F.R.D. 594 (S.D. Ind. 1993), objections
11

overruled, 852 F. Supp. 704 (S.D. Ind. 1994), Cummins argues for a “rule” that an insurance
company cannot claim work product protection for any document that was prepared before its
“final” claims decision or for any document that was not prepared and used solely to prepare for
litigation. (See Cummins’s reply brief at 10-11). Cummins does not acknowledge, however, that
when Judge Barker ruled on objections to Judge Foster’s order in Stout, she held that there is no
“bright line rule” for invoking work product privilege, id. at 707, and that a document prepared
for dual litigation and ordinary business purposes does not necessarily mean that the document is
not work product. The Seventh Circuit’s “primary motivating purpose” test applies; a document
created with a dual purpose is not work product if the litigation purpose was not primary, but
would be work product if it was primary. 852 F. Supp. at 706-07. Judge Barker also made clear
that although presumptions may aid in the analysis of whether a document is work product, the
focus must always be on the specific facts of a particular case. Id. at 707. See also Goodyear
Tire and Rubber, 190 F.R.D. 532 (S.D. Ind. 1999) (in determining when an insurer reasonably
anticipates litigation, court must “avoid bright line rules and examine the specific facts of the
case”).
The Insurers contend that they anticipated litigation with Cummins as of October 10,
2008, the date of their coverage position letter to Cummins, which expressed the Insurers’ view
that flood sublimits applied (limiting Cummins’s coverage for property losses in two of its
buildings to $50 million) and that a special deductible applied because these two buildings were
within a 100-year flood zone. See October 10, 2008 letter, Dkt. 123-1 (“While we are still in the
process of investigation and adjustment, the insurers have sufficient information to state their
position on the deductible and sublimit of liability to be applied under the Policy”). Cummins
asserts that the coverage position letter was not, by its own terms, the Insurers’ absolute final
word on Cummins’s Claim and that Cummins and the Insurers continued to work on claims
12

adjustment matters after October 10, 2008. Cummins does not identify any particular date as the
Insurers’ final claims decision.5
The court agrees with the Insurers that their October 10, 2008 coverage letter reasonably
may be viewed as a marked change in the relationship between the Insurers and Cummins with
respect to Cummins’s Claim. Although the document might not have been the Insurers’ last
word short of litigation regarding coverage issues, the letter clearly reflects the Insurers’ initial
and detailed decision regarding the coverage issues at the heart of the parties’ disputes. See
Goodyear Tire and Rubber, 190 F.R.D. at 536 (describing the Stout case as one where the insurer
failed to block discovery because the subject documents were created while the insurer “was still
making its initial decision to approve or deny its insured’s claim). Given the magnitude of
Cummins’s property losses (which the parties knew shortly after the flood would exceed $100
million), and the centrality of the flood sublimits issues to whether insurance would wholly cover
Cummins’s losses, the court finds convincing the Insurers’ argument that they reasonably
anticipated litigation with Cummins when they provided their coverage analysis to Cummins in
October 2008. At that point, the Insurers (and Cummins) knew that their differences of opinion
amounted to tens of millions of dollars—an amount of money parties are likely to litigate about.
That is not to say that every document prepared after October 10, 2008 is work product. The
Insurers still must show, and the court must be convinced, that for each document the primary
motivating purpose for its creation was litigation.6

5

Cummins argues that a document cannot be work product it if was prepared before the
date the Insurers filed suit against Cummins in Illinois, or May 22, 2009, because “[t]here is no
evidence that anyone anticipated litigation until then.” (Cummins’s reply brief at p. 14).
Obviously, the Insurers anticipated filing suit before they did so.
6

The court rejects the Insurers’ position, advanced without any supporting authority, that
the work product doctrine protects from disclosure every document that contains or reflects an
13

The Insurers did not withhold from production any documents based solely on work
product grounds. For those five documents that the court has ruled were not protected from
disclosure by the attorney-client privilege and for which a work product objection also was
made, the court addresses here the work product objection. The court finds that the Insurers’
work production objection to production is not well-founded as to any of these documents.
These documents must be produced by the Insurers within 7 days of this order:
Category Doc. No.

Brief Description/Explanation

AC41, AC42

Email strings regarding setting of meeting. No indication that
primary motivating purpose for creation was litigation.

AC55

Top email on page GLCWH036 may be redacted as privileged
communication with counsel. Second email is not privileged, nor is there
any indication that primary motivating purpose for second email was
litigation. The second email is not protected from disclosure by
work product doctrine.

C38

Email strings regarding loss adjustment fund. No indication that
primary motivating purpose for creation was litigation. Document
is also not protected from disclosure by attorney-client privilege.

H5

Handwritten notes of meeting. Focused on claims adjustment matters.
No indication that primary motivating purpose for creation was
litigation.
Documents Withheld on “Relevance” Grounds
The Insurers submitted to the court for in camera review documents that they also

withheld from production on relevance grounds. The court has reviewed those documents,
which relate to adjustment and payment of Cummins’s Claim. The Insurers have offered no
argument in support of their relevance theory. The Insurers do not claim they are protected from
disclosure by the work product doctrine, attorney-client privilege, or any privilege. There is no
basis for withholding them from production. The Insurers must produce all documents on their
attorney’s impressions no matter whether the document was generated in anticipation of
litigation. (See Insurers’ opposition brief, Dkt. 123, at p. 15).
14

privilege log withheld solely on relevance grounds. This applies to documents AC15, AC16,
AC33, C2-C37 inclusive, C39-C52 inclusive, V1, V2, and V4-V33 inclusive.
Conclusion
Based on the foregoing analysis, the court GRANTS in part and DENIES in part
Cummins’s second motion to compel. Within 7 days of the entry of this order, the Insurers shall
produce to Cummins the following documents identified on the privilege log submitted to the
court in connection with its in camera review:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

AC5 in redacted form.
AC6 in redacted form.
AC7
AC10-AC13
AC 15-AC16
AC24 in redacted form.
AC33-AC34
AC40 in redacted form.
AC41-42
AC55 in redacted form
I5-I6
ACS05
C1-C52
H1
H3
H5
V1-V33

So ORDERED.
05/02/2011
Date: _________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

15

Distribution:
Bryce H. Bennett Jr.
RILEY BENNETT & EGLOFF LLP
[e-mail]
Andrew J. Detherage
BARNES & THORNBURG LLP
[e-mail]
Charles P. Edwards
BARNES & THORNBURG LLP
[e-mail]
Kenneth W. Erickson
ROPES & GRAY, LLP
[e-mail]
David E. Heiss
FISHER KANARIS P.C.
[e-mail]
Peter Emanuel Kanaris
FISHER KANARIS PC
[e-mail]
Eric D. Stubenvoll
FISHER KANARIS, P.C.
[e-mail]

16