INDIANAPOLIS AIRPORT AUTHORITY v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

Filing 204

ORDER ON MOTIONS TO COMPEL: IAA's supplemental brief [Filing No. 130] is granted in part and denied in part. Travelers' motion to compel [Filing No. 159] is also granted in part and denied in part (see Order for details). Signed by Magistrate Judge Tim A. Baker on 8/7/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
INDIANAPOLIS AIRPORT AUTHORITY,

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Plaintiff,
vs.
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
Defendant.

No. 1:13-cv-01316-JMS-TAB

ORDER ON MOTIONS TO COMPEL
I. Introduction
Pending before the Court are cross motions to compel. In this complex insurance
litigation, the parties dispute discovery extending to at least seven different entities and involving
a countless number of emails, spreadsheets, and letters. Defendant Travelers filed its motion to
compel against Plaintiff Indianapolis Airport Authority seeking documents IAA claims are
protected under attorney-client privilege and work product. IAA filed a supplemental brief that
relates to a previous September 12, 2014, motion to compel against Travelers and seeks
documents designated as attorney-client communications and work product.1 For the reasons set
forth below, Travelers’ motion to compel [Filing No. 159] is granted in part and denied in part,
and IAA’s supplemental brief [Filing No. 130] relating to its September 12, 2014, motion to
compel is granted in part and denied in part.

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IAA filed this supplemental brief pursuant to the Court’s instructions. In a January 20, 2015,
telephonic status conference concerning several discovery disputes (related to the Court’s ruling
on IAA’s September 12, 2014, motion to compel) the Magistrate Judge instructed IAA to file
and brief a motion to compel concerning any outstanding discovery issues the parties were
unable to resolve after a good faith effort. [Filing No. 103.]
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II. Discussion
A.

Attorney-client privilege

Federal Rule of Civil Procedure 26 requires broad, open discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense. Fed. R. Civ. P. 26(b)(1).
However, parties may shield materials from discovery that are protected by attorney-client
privilege, work-product privilege, or the common interest doctrine. F.D.I.C. v. Fidelity and
Deposit Co. of Maryland, No. 3:11-cv-19-RLY-WGH, 2013 WL 5938149, at *2 (S.D. Ind. Nov.
6, 2013). Attorney-client privilege extends to communications made in confidence by a client
and client’s employees to an attorney acting in her legal capacity for the purpose of obtaining
legal advice. Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). To
shield materials under the attorney-client privilege, the Court must determine whether legal
advice was sought from an attorney in her capacity as an attorney and whether any
communications between the client and her attorney were germane to that purpose and made
confidentially. Sandra T.E., 600 F.3d at 618. The party invoking the privilege has the burden of
establishing its propriety.
Privilege is typically asserted on a document-by-document basis. Long v. Anderson
University, 204 F.R.D. 129, 134 (S.D. Ind. 2001). However, in discovery disputes implicating a
large number of documents it is appropriate to review in camera a limited number of exemplary
documents that the party invoking the privilege argues are representative of the documents
withheld under a select category. See F.D.I.C. v. Fidelity and Deposit Co. of Maryland, No.
3:11-cv-19-RLY-WGH, 2013 WL 2421770, at *1-2 (S.D. Ind. Nov. 6, 2013). Based upon a
review of these in camera documents, the Court may exempt the party invoking the privilege
from producing the remaining documents from the select category.

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1. Travelers’ attorney-client communications
IAA’s supplemental brief contends that Travelers’ privilege log improperly designates
several documents as protected under the attorney-client privilege.2 According to IAA, Travelers
improperly designated attorney-client communications as privileged that fall within the ordinary
course of Travelers’ business. For example, IAA asserts that privilege log entries where
Travelers’ attorneys discussed the reporting structure of its consultants, tolling the statute of
limitations, and revising change order language shows that Travelers’ attorneys acted within the
insured’s ordinary course of business as supervisors and monitors of the claim investigation.
[Filing No. 130, at ECF p. 6-7, 9-11.] However, Travelers’ in camera submissions reveal that
documents containing communications about the reporting structure of its consultants also
sought a legal opinion on coverage issues. [In camera Travelers’ Ex. 15.] Documents withheld
concerning time extensions, potential settlement, and proposed change order language are also
privileged. In camera submissions show that claim adjusters Nancy Fisher and Elaine Bedard
sought advice from attorneys Murray Sacks and Chris Perry concerning whether to extend time
for IAA to file suit. This is a valid communication seeking legal advice and thus, is privileged.
[In camera Travelers’ Ex. 16.] Other privilege log entries IAA argues should be produced

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IAA suggests that communications between the insured and its counsel discussing a specific
insurance policy are not protected by the attorney-client privilege. No such limitation exists.
The privilege extends to all communications between a client and its attorney for the purpose of
obtaining legal advice or aid regarding the client’s rights and liabilities that would not have been
made absent the privilege. See Woodruff v. American Family Mut. Ins. Co., 291 F.R.D. 239, 246
(S.D. Ind. 2013); Corll v. Edward D. Jones & Co., 646 N.E.2d 721, 724 (Ind. Ct. App. 1995). A
contrary rule would have a chilling effect on an insurance company’s decision to seek legal
advice regarding specific coverage issues. See Hartford Fin. Servs. Group, Inc. v. Lake County
Park and Recreation Bd., 717 N.E.2d 1232, 1235-36 (Ind. Ct. App. 1999) (noting that an
insurance company’s retention of legal counsel to interpret the policy, investigate the details
surrounding the damage, and to determine whether the insurance company is bound for all or
some of the damage is a classic example of a client seeking legal advice from an attorney).
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concern settlement. Such communications contain attorney mental impressions and thus are
protected by attorney-client privilege. [In camera Travelers’ Ex. 17.] Similarly, withheld
communications concerning change order language includes legal advice on what impact, if any,
the proposed language would have on coverage. [In camera Travelers’ Ex. 18.] Thus, none of
these documents needs to be produced.
IAA further asserts that Travelers’ attorneys destroyed its privilege when it
communicated with its consultants, Madsen, Kneppers & Associates and Wiss, Janney, Elstner
Associates about IAA’s claim. Travelers’ communications with MKA and WJE allegedly show
that Travelers’ attorneys acted as claim investigators and not in their legal capacity. In the
Court’s view, communications with MKA and WJE do not destroy Travelers’ attorney-client
privilege.
Travelers’ adjuster Fisher hired the consultants to assist in investigating IAA’s claim.
While MKA and WJE are third parties, it is well settled that the attorney-client privilege is not
waived when communications seeking legal advice are made by a client to its attorney in the
presence of a third-party agent. United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997);
Snedeker v. Snedeker, No. 2:10-cv-189-LJM-WGH, 2011 WL 3555650, at *2 (S.D. Ind. Aug.
11, 2011); Ormond v. Anthem, Inc., Nos. 1:05-cv-1908-TWP-TAB, 1:09-cv-798-TWP-TAB,
2011 WL 2020661, at *2 (S.D. Ind. May 24, 2011).
Moreover, an investigation into relevant facts by Travelers’ attorneys does not
necessarily waive the attorney-client privilege. As Travelers points out, legal advice cannot be
rendered in a vacuum. It is appropriate and within the attorney-client privilege for an attorney to
review and investigate relevant documents to assist in rendering legal advice. Sandra TE v. S.
Berwyn Sch. Dist. 100, 600 F.3d 612, 619 (7th Cir. 2009) (“[F]actual investigations performed

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by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege.”).
Here, in camera communications show that Sacks and Perry met and reviewed MKA’s and
WJE’s reports in their capacity as attorneys to advance negotiations with IAA’s counsel. [In
camera Travelers’ Ex. 29.] Under these circumstances, their communications are protected.
According to IAA, Travelers’ attorneys did not act in their legal capacity when they
analyzed documents concerning IAA’s proof of loss, date of substantial completion, claimed
damages, or expense categorization. Consequently, IAA asserts that these communications must
be produced. However, IAA’s argument fails. Documents related to proof of loss, date of
substantial completion, and damages are protected under attorney-client privilege. In camera
communications show that Fisher sought legal advice on coverage of claims after proof of loss
statements were completed, and Travelers’ attorneys provided legal advice on Travelers’
responsibilities under a partial proof of loss. [In camera Travelers’ Ex. 23.] The same is true of
Travelers’ communications regarding the date of substantial completion. In camera documents
show that Travelers’ attorneys were not analyzing the relevant dates but giving their opinion on
the completion dates IAA submitted. [In camera Travelers’ Ex. 24.] Moreover, Sacks’ and
Perry’s communications with Fisher and Bedard relating to damages are privileged. Travelers’
in camera communications on damages provide legal advice on what costs, if any, would be
covered under Travelers’ policy, and how Indiana law may affect the outcome of the coverage.
[In camera Travelers’ Exs. 25, 26.] These communications fall within the attorney-client
privilege and need not be produced.
However, Travelers’ communication concerning expense categorization must be
produced. This withheld email seeks assistance from Sacks and claims supervisor, Ken
Chapman, on analyzing invoices submitted by IAA. Travelers’ in camera communication does

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not suggest that Sacks provided any legal advice. [In camera Travelers’ Ex. 27.] Instead, the
communication appears to be in the ordinary course of Travelers’ business adjusting claims and
thus, must be produced. See Fares Pawn, LLC v. Indiana, No. 3:11-cv-136-RLY-WGH, 2012
WL 3580068, at *5 (S.D. Ind. Aug. 17, 2012); Allendale Mut. Ins. Co. v. Bull Data Systems, Inc.,
152 F.R.D. 132, 137 (N.D. Ill. 1993) (“But the legal advice given to the client must be the
predominant element in the communication; the privilege will not apply where the legal advice is
incidental to business advice.”).
IAA seeks production of Travelers’ drafted correspondence. However, Travelers’ drafted
communications to IAA are protected under attorney-client privilege. In camera documents
show that Sacks and Perry did not write IAA communications themselves. Instead, Fisher and
Bedard drafted the communications and consulted Sacks and Perry for legal advice on the
language of the coverage letters. [In camera Travelers’ Ex. 6.] Legal advice sought from an
attorney concerning the legality of a drafted document that are made in confidence fall under the
attorney-client privilege. Roth v. Aon Corp., 254 F.R.D. 538, 541 (N.D. Ill. 2009); see Jones v.
Hamilton County Sheriff’s Dept., IP 02-0808-C-H/K, 2003 WL 21383332, at *5 (S.D. Ind. June
12, 2003).
IAA’s supplemental brief further contests Travelers’ privileged communications between
Perry and his assistant concerning the name and location of certain files. In camera documents
show Perry directed his assistant to save case law relevant to IAA’s coverage issues under a
specific file name. In another communication, Perry directed his assistant to find specific
information relevant to IAA’s coverage policy for him to consider.3 [In camera Travelers’ Ex.

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The majority of these privileged communications occurred after Travelers anticipated litigation
with IAA and were saved for the purpose of analyzing and preparing Travelers’ defense. Sandra
T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010).
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4.] These communications show Perry investigated IAA’s policy in his legal capacity and
provided his opinion on relevant legal theories. Such communications fall within the attorneyclient privilege and need not be produced. See Sandra T.E., 600 F.3d at 620 (“The relevant
question is not whether the attorney was retained to conduct an investigation, but rather, whether
this investigation was related to the rendition of legal services.”).
Lastly, IAA argues that Travelers’ privilege logs are inadequate and subject to
production. IAA takes issue with Travelers’ descriptions of communications “sent for purpose
of requesting legal analysis and advice for the purpose of considering an aspect of the claim.”
[See, e.g., Filing No. 131-11, at ECF p. 11.] Travelers asserts that these communications
concern legal advice and analysis of Indiana law as it relates to Travelers’ rights and liabilities
under its insurance policy. However, Travelers’ privilege log description does not reflect the
privilege Travelers asserts in its brief. Travelers must supplement its privilege log to more
accurately reflect the content of these communications.
Contrary to IAA’s position, Travelers’ log entries describing “emails sent for purposes of
providing documents requested by Attorney Chris Perry necessary for rendering legal opinion
and advice” adequately reflect the communication and need not be supplemented. [See, e.g.,
Filing No. 131-14, at ECF p. 5.] In the same vein, Travelers’ log entries describing unidentified
information produced to its attorneys for legal advice and emails sent with attachments seeking
legal advice in upcoming, unspecified meetings are sufficient when considered in the context of
preceding entries. For example, IAA objects to a July 17, 2012, correspondence “from Attorney
Seamands attached to privileged communications sent for purpose of seeking legal advice”
because it is vague. However, this entry was sent at the same time as the preceding entry, which
reads “email sent for the purpose of requesting legal advice regarding correspondence and Proof

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of Loss received from IAA / Attorney Seamands.” [Filing No. 131-14, at ECF p. 3.] After
considering the context of the attachment at issue, the Court finds supplementation and
production of these entries are not necessary. Travelers provides enough of a factual basis to
properly establish its evidentiary privilege without giving away privileged information. Fed. R.
Civ. P. 26(b)(5)(A); Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 380 (S.D. Ind.
2009).
Thus, the Court finds IAA’s arguments concerning Travelers’ attorney-client privilege
designation somewhat justified. Travelers shall produce its documents related to expense
categorization [in camera Travelers’ Ex. 27] and supplement its privilege log entries describing
communications “sent for purpose of requesting legal analysis and advice for the purpose of
considering an aspect of the claim” to more accurately reflect its communication.
2. IAA’s attorney-client communications
Travelers’ motion to compel contends that IAA’s privilege log improperly designates
several documents as protected under the attorney-client privilege that fall within the ordinary
course of IAA’s business.4 For example, Travelers contends that IAA should be required to
produce communications where IAA’s attorneys investigated IAA’s insurance claim, gathered
documents, developed facts to support the claim, calculated damages, prepared spreadsheets,
proofs of loss and letters, presented IAA’s claim, and communicated with Travelers.
Information gathered on behalf of attorneys to render legal advice, an attorney’s impressions of

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IAA argues that Travelers’ motion to compel is untimely and should be denied because there
would be little to no opportunity to fully resolve the motion before the August 17, 2015,
discovery deadline, which would prejudice IAA. [Filing No. 168, at ECF p. 5.] The parties have
since then filed a joint motion to extend the Case Management Plan deadlines, which the Court
granted. The discovery deadline is now October 16, 2015, which gives the parties ample
opportunity to comply with this order and otherwise resolve any lingering discovery issues.
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those facts, and legal advice concerning drafted communications to Travelers fall within the
scope of the attorney-client privilege. Roth v. Aon Corp., 254 F.R.D. 538, 541 (N.D. Ill. 2009);
see Jones v. Hamilton County Sheriff’s Dept., IP 02-0808-C-H/K, 2003 WL 21383332, at *5
(S.D. Ind. June 12, 2003); Long v. Anderson University, 204 F.R.D. 129, 135 (S.D. Ind. 2001);
Allendale Mutual Ins. Co. v. Bull Data Systems, Inc., 152 F.R.D. 132, 136-37 (N.D. Ill. 1993). It
is not within IAA’s ordinary course of business to submit an insurance claim, thus attorney
communications aiding IAA in determining its rights under the insurance policy are protected.
Contra Illiana Surgery and Medical Center LLC v. Hartford Ins. Co., No. 2:07-cv-3, 2010 WL
4852459, at *2 (N.D. Ind. Nov. 18, 2010) (“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.”).
The select in camera documents IAA filed with the Court show that IAA’s counsel aided in
determining IAA’s rights under the insurance policy, and provided mental impressions on facts
relevant to IAA’s claim. [In camera Filing Nos. 173; 174; 175; 176; 177;178; 179; 180; 181;
182; 183; 184; 185.] As such, these communications are privileged.
Gathering documents and disclosing facts into spreadsheets that support the claim would
not be protected as a privileged communication, unless an attorney requested information to
assist in rendering legal advice. See Upjohn Co. v. U.S., 449 U.S. 383, 394-96 (1981). IAA
argues that its attorneys did not gather documents and disclose facts relevant to IAA’s insurance
claim. Instead, it relied on its employees and third-party agents to provide this information. In
support of its argument, IAA cites to the deposition of its finance director, Robert Thomson.
Thomson testified that only the financial department had access to the information necessary to
create IAA’s damages spreadsheet, and his department was responsible for creating the related

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spreadsheets. [Filing No. 169-9, at ECF p. 1-5.] In camera documents reveal Thomson and
IAA’s financial department provided information to IAA’s counsel at the direction of IAA’s inhouse and outside counsel. [In camera Filing Nos. 173, 176.] The communication of these facts
formed the basis for IAA’s attorney-client privilege and thus are protected.
However, IAA may not shield underlying facts from production. In its motion, Travelers
lists documents that it argues contain underlying facts and must be produced. [Filing No. 160, at
ECF p. 15.] An in camera review of IAA’s privileged documents show that some documents
IAA marked as privileged neither contain nor seek legal advice. [See, e.g., in camera Filing No.
160-10 log entry 11; Filing No. 160-13 log entries 11, 45, 79, 89, 121, 122, 190; Filing No. 16014 log entries 5, 7, 8, 11, 21, 23, 294, 296.] The attorney-client privilege does not protect these
underlying facts from being produced. E.E.O.C. v. SVT, LLC, 297 F.R.D. 336, 345 (N.D. Ind.
2014). Communicating underlying facts to an attorney “by copying the attorney on an email
does not transform the email into a privileged communication.” Hamdan v. Indiana University
Health North, LLC, No. 1:13-cv-00195-WTL-MJD, 2014 WL 2881551, at *3 (S.D. Ind. June 24,
2014). Accordingly, these communications must be produced. Other documents that Travelers
argues contain underlying facts do not. An in camera review shows these communications relate
to legal advice on resolving IAA’s contractor claims. [See, e.g., in camera Filing No. 160-12 log
entries 94, 152; Filing No. 160-13 log entries 81, 85, 88; 91, 206.] Such information is protected
by privilege.
Travelers argues that communications between IAA’s counsel and representatives from
BSA Life Structures, TC&M, and Hunt Smoot must be produced because these communications
discuss business advice. According to Travelers, IAA’s counsel provided business advice on:
notices; change orders; contract amendments; spreadsheets; ongoing construction activities post-

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incident; board presentations, updates, agendas, and memoranda; bonds; audits and accounting;
scheduling; and project costs. In camera documents reveal that IAA’s attorneys rendered legal
advice on settling and resolving IAA’s outstanding issues with its contractors post-incident.
[See, e.g., in camera Filing No. 160-12 log entries 94, 152, 231, 232; Filing No. 160-13 log entry
88.] Board presentations, updates, agendas, and memoranda contained summaries of IAA’s
status on settling relevant claims with its contractors and are therefore protected. [See, e.g., in
camera Filing No. 160-11 log entries 56, 57, 58, 61.] Likewise, IAA’s attorneys provided legal
advice on drafting change orders and gave legal opinions on outstanding settlement claims from
contractors. [See, e.g., in camera Filing No. 160-13 log entries 61, 62; Filing No. 160-14 log
entries 170, 172.] Moreover, IAA’s counsel received requested information on the potential list
of losses resulting from the steel tower incident and estimated settlement amounts. Such
information served as the basis for IAA’s legal advice and is thus protected. [See, e.g., in
camera Filing No. 160-12 log entry 194; Filing No. 160-13 log entries 85, 273.]
Travelers further argues that IAA waived its privilege for attorney-client communications
including third-parties Hunt Smoot and TC&M. IAA argues that Hunt Smoot’s construction
manager, Mark Flandermeyer, and TC&M’s president, Rich Potosnak, were the functional
equivalent of IAA employees and should be included under the attorney-client privilege. The
Seventh Circuit has not directly addressed the functional equivalent test for which IAA
advocates. See LG Electronics U.S.A., Inc. v. Whirlpool Corp. 661 F.Supp. 2d 958, 961 (N.D.
Ill. 2009). Even so, IAA’s third-party communications are protected. Flandermeyer and
Potosnak were IAA’s agents retained to assist in managing its large-scale Midfield Terminal
Project. Because of their positions, they were routinely present at the project, maintained offices
at the site, were issued IAA email accounts, utilized IAA servers, and solved day-to-day

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problems at the site. IAA asserts and in camera documents show that IAA’s counsel relied on
Flandermeyer’s and Potosnak’s knowledge of the project and worksite to analyze the insurance
claim. [See, e.g., in camera Filing No. 160-14, log entries 673, 951, 1019, 1042, 1108.] IAA
submits that Flandermeyer’s and Potosnak’s knowledge enabled in-house and outside counsel to
provide legal advice. As such, their communications with IAA’s counsel related to giving or
seeking legal advice are protected. See Ormond v. Anthem, Inc., 2011 WL 2020661, at *2 (S.D.
Ind. May 24, 2011).
IAA also contends that Hunt Smoot’s in-house counsel, Jose Pienknagura, and BSA Life
Structures director of contractors, Jay McQueen, are protected under the privilege. Pienknagura
and McQueen rendered legal advice to IAA relating to the Midfield Terminal Project. McQueen
provided legal advice to IAA throughout the course of the project, whereas Pienknagura
provided legal advice in 2007. [Filing No. 168, at ECF p. 18.] Travelers asserts that because
IAA did not retain Pienknagura and McQueen as attorneys, their communications cannot be
privileged. However, no such requirement is necessary to establish the privilege.
The attorney-client relationship “begins when a client believes that he or she is consulting
an attorney in a professional capacity and manifests his intention to seek professional legal
advice.” Olson v. Brown, No. 4:09-cv-6-AS-PRC, 2009 WL 799531, at *2 (N.D. Ind. Mar. 23,
2009) (citing Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317-19 (7th Cir.
1978)). IAA consulted McQueen and Pienknagura in their professional legal capacity seeking
legal advice. [Filing No. 169-1, at ECF p. 4.] In camera documents show that McQueen and
Pienknagura gave IAA and IAA’s agents legal advice on the insurance claim and other litigation
relating to the steel tower incident. [In camera Filing Nos. 190, 191, 192; see, e.g., in camera
Filing No. 160-13 log entries 63, 74.] Pienknagura did so until replaced by Ice Miller counsel.

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[See, e.g., in camera Filing No. 160-11 log entry 55.] IAA employees and IAA’s agents also
provided McQueen and Pienknagura information requested for the purpose of rendering legal
advice. [See, e.g., in camera Filing No. 160-13 log entry 69.] Moreover, Travelers recognized
McQueen and Pienknagura as IAA’s attorneys as it addressed and sent its reservation of rights
letters to them. [See, e.g., Filing No. 169-17.] Thus, the attorney-client privilege extends to
McQueen’s and Pienknagura’s communications providing legal advice.
IAA further withheld documents containing communications with its BKD accountants,
which Travelers also asserts must be produced as these communications fall within the ordinary
course of IAA’s business.5 As agents of IAA, communications containing legal advice between
IAA’s accountants at BKD and IAA’s counsel are privileged. IAA submitted in camera a letter
sent from IAA’s counsel to BKD discussing IAA’s ongoing litigation and the potential cost of
each lawsuit. Such a communication is protected because it includes legal advice concerning the
outcome of pending litigation. [In camera Filing No. 187.] Other in camera documents reveal
that drafted letters to IAA’s auditors included legal advice. [See, e.g., in camera Filing No. 16013 log entry 45.] Thus, communications to IAA’s accountant that contain legal advice are
protected. IAA’s privilege log includes communications between BKD accountants outside the
presence of IAA’s counsel. These communications are also protected because BKD’s

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As IAA points out, Indiana law protects accountant-client communications as privileged. Ind.
Code § 25-2.1-14-1. However, “Indiana courts disfavor such statutorily created privileges and
therefore strictly construe them to limit their applications. Not only must the party asserting
privilege establish each of its essential elements; it must also invoke the privilege on a
document-by-document basis.” Pain Center of SE Indiana, LLC v. Origin Healthcare Solutions
LLC, No. 1:13-cv-00133-RLY-DKL, 2015 WL 2166708, at *2 (S.D. Ind. May 8, 2015). IAA
fails to explain why the accountant-client privilege is appropriate for the documents it withheld,
and absent such articulation, the moving party may not use this privilege to avoid discovery.
Pain Center of SE Indiana, LLC, 2015 WL 2166708, at *2.
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accountants expressly discuss counsel’s legal advice. [See, e.g., in camera Filing No. 160-15 log
entries 166, 167.]
Lastly, Travelers argues that IAA’s privilege logs are improper, vague, and subject to
waiver. Travelers objects to IAA’s privilege log descriptions because they vaguely explain
documents created by Ice Miller, inadequately assert privilege for legal advice on spreadsheets,
emails, or memoranda without further explanation, and inadequately describe communications
on complying data and preparing work product. The Court disagrees. IAA’s privilege log
adequately describes privileged drafts of proof of loss letters authored by Ice Miller sent to IAA
for client review [see, e.g., Filing No. 160-11 log entries 33, 36], as well as email
correspondence between IAA’s counsel discussing a telephone call with Travelers’ adjuster and
providing legal advice regarding that call [see, e.g., Filing No. 160-14 log entry 45]. Moreover,
IAA’s description of emails containing legal advice on IAA’s efforts in assembling data and
preparing documents for Travelers [see, e.g., Filing No. 160-14 log entry 498] and emails to
prepare work product that relates to documents requested by Travelers are adequate [see, e.g.,
Filing No. 160-14 log entry 91]. IAA provides enough of a factual basis to properly establish its
evidentiary privilege without giving away privileged information. Fed. R. Civ. P. 26(b)(5)(A);
Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 380 (S.D. Ind. 2009).
However, IAA’s privilege log entries describing its attachments are inadequate. IAA
fails to indicate the author of certain withheld attachments, which hinders Travelers’ ability to
evaluate the applicability of the privilege or production under Rule 26(b)(5)(A). For instance,
IAA’s 7/2/14 supplemental privilege log includes several communications from IAA’s corporate
designee, Robert Duncan, to IAA’s Board of Directors that include unauthored reports IAA
claims are protected by attorney-client privilege. However, it is not clear who prepared the

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report and whether the author was an attorney or if the information was prepared by attorney
request. [See, e.g., Filing No. 160-11, at ECF p. 5, 16, 20; Filing No. 160-13, at ECF p. 7, 16.]
Thus, IAA must supplement its privilege log so that it includes the author of the attachments
withheld.
Thus, the Court finds Travelers’ arguments concerning attorney-client privilege
communications are somewhat justified. IAA must produce communications that contain
underlying facts subject to discovery. [See, e.g., in camera Filing No. 160-10 log entry 11;
Filing No. 160-13 log entries 11, 45, 79, 89, 121, 122, 190; Filing No. 160-14 log entries 5, 7, 8,
11, 21, 23, 294, 296.] IAA must supplement its privilege log to include the authors of the
attachments it purports are protected by attorney-client privilege.
B. Work-product doctrine
Rule 26(b)(3) prohibits production of documents prepared in anticipation of litigation,
except when the documents are otherwise discoverable and the seeking party shows that it has
substantial need for the materials to prepare its case. To show substantial need, the seeking party
must show it cannot obtain a substantial equivalent by other means without undue hardship. Fed.
R. Civ. P. 26(b)(3). To be protected under the work-product doctrine, the primary motivating
purpose behind the creation of the document or investigative report must be to aid in possible
future litigation. Indianapolis Airport Authority v. Travelers Property Cas. Co. of America, No.
1:13-cv-1316-JMS-TAB, 2015 WL 1013952, at * 7 (S.D. Ind. Mar. 9, 2015) (quoting Binks Mfg.
Co. v. Nat’l Presto Industries, Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)).
1. Travelers’ work-product designations
IAA argues that Travelers failed to show that the primary motivating purpose behind the
creation of some of its work-product documents was to aid in possible future litigation.

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Specifically, IAA takes issue with Travelers’ work-product designation for documents seeking
legal advice on tolling the statute of limitations and drafting the claim decision letters. As IAA
points out, Travelers’ employees routinely sought legal advice on tolling, drafting letters, and
saving documents before it anticipated litigation. Indeed, Travelers asserts no additional facts to
suggest that the primary purpose of these communications post-dating August 17 was to seek
legal advice for litigation and not merely routine legal advice. See Binks Mfg. Co. v. National
Presto Industries, Inc., 709 F.3d 1109, 1118-19 (7th Cir. 1983). Without more information, the
work-product doctrine does not shield these communications.6 See Allendale Mut. Ins. Co. v.
Bull Data Systems, Inc., 152 F.R.D. 132, 135 (N.D. Ill. 1993) (noting that the scope of privileges
should be confined to the narrowest possible limits). Even so, these documents need not be
produced. The documents are protected by attorney-client privilege as they are communications
seeking legal advice. Travelers is not required to produce any of these documents, but must
revise its privilege log to remove the work-product designation from routine legal advice.
2. IAA’s work-product designations
Travelers argues that IAA over-designated communications as work product because
IAA withheld communications starting August 10, 2012, the date Travelers denied coverage for
IAA’s Proof of Loss. IAA asserts that Travelers’ August 10, 2012, letter denying coverage
prompted IAA to draft the August 17 letter threatening litigation. According to Travelers, both
parties should have anticipated litigation on the same date. However, IAA correctly notes that
the parties need not use the same date for the purpose of the work-product doctrine if IAA can

6

As the Court previously indicated, Travelers’ attorney instructed his assistant to save case law
and relevant documents under certain file names after Travelers anticipated litigation. [In
camera Travelers’ Ex. 4.] These files were created to aid in possible future litigation and related
communications included attorney mental impressions. Consequently, they are properly
protected under the work-product doctrine.
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show it anticipated litigation on a date other than August 17, 2012. State Farm Fire and Cas.
Co. v. Nokes, 263 F.R.D. 518, 523 (N.D. Ind. 2009).
IAA cites its August 17 letter to support its argument that it anticipated litigation August
10, 2012. Indeed, IAA’s August 17 letter expressly references Travelers’ August 10 letter
stating it “ignores the parties’ course of conduct in the handling of this matter over the last
several years and suggests that Travelers intends to treat it as a brand new claim.” [Filing No.
30-3, at ECF p. 1.] The letter goes on to challenge Travelers’ August 10 assertions, concluding
that Travelers’ requests are unreasonable and “in light of Travelers’ letter, and its recent refusal
to participate in a meeting to discuss how the parties might proceed toward resolution of this
claim, IAA has little confidence that this matter is progressing appropriately toward resolution.”
[Filing No. 30-3, at ECF p. 4-5.] The Court finds IAA properly established that it anticipated
litigation August 10, and documents created thereafter primarily for the purpose of aiding in
future litigation are protected under the work-product doctrine.
Travelers also asserts that IAA improperly withheld documents and communications as
work product that predate and post-date August 2012. The documents that predate August 10 are
appropriately withheld under the work-product designation as they relate to litigation with parties
other than Travelers. Goodyear Tire and Rubber Co. v. Chiles Power Supply, Inc., 190 F.R.D.
532, 538 (S.D. Ind. 1999) (“If a document is protected by the work product privilege, it is
protected in any litigation, not only in the litigation for which the document was prepared.”) To
determine whether IAA appropriately designated post-dated communications as work product,
the Court reviewed IAA’s 7/2/14 privilege log.7 IAA’s in camera documents reveal that the

7

The Court reviewed IAA’s 7/2/14 privilege log as representative of the documents withheld as
work product in IAA’s remaining privilege logs. As such, the Court’s finding as to IAA’s 7/2/14
privilege log extends to IAA’s remaining work-product designations. F.D.I.C. v. Fidelity and
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primary purpose of some communications was litigation. [See, e.g., in camera Filing No. 16011, log entries 1, 21, 28, 75, 83, 84, 85, 86, 191, 192, 194, 219, 245, 253, 261.] However, IAA’s
documents also show that the main purpose behind other communications was to submit IAA’s
claim to Travelers. [See, e.g., Filing No. 160-11, log entries 81, 82, 195, 200, 201, 202, 203,
210, 211, 212, 214, 215, 218, 222, 223, 227, 229, 234, 235, 236, 237, 239, 240, 243, 244, 246,
249, 256, 265, 266, 279, 280, 283, 284, 285, 286, 287.] For example, IAA’s in-house and
outside counsel reviewed and discussed a drafted communication to Travelers’ adjuster on May
22, 2013. Their discussion contains routine legal advice concerning IAA’s claim. [In camera
Filing No. 160-11 log entry 195.] Work product does not shield these communications as they
were created to serve a primary purpose other than to aid in future litigation. Still, these
communications are protected attorney-client communications and need not be produced. IAA
shall revise its work-product designations in its privilege log to include only communications
created for the primary purpose of aiding in future litigation.
Travelers seeks production of communications IAA withheld as work product, claiming
that it has a substantial need for these documents. However, Travelers has failed to establish a
legitimate substantial need. This is in large part due to the fact that Travelers has had access to
the underlying facts through other means. Fed. R. Civ. P. 26(b)(3). As IAA sets forth in its
surreply, “IAA has produced all of the underlying documents, including contractor invoices,
cancelled checks and bond statements, supporting its damages” that are designated as workproduct communications. IAA also argues “Travelers has deposed Rich Potosnak, Robert
Thomson, Mark Flandermeyer, and Robert Duncan, all of whom testified regarding the

Deposit Co. of Maryland, No. 3:11-cv-19-RLY-WGH, 2013 WL 5938149, at *1-2 (S.D. Ind.
Nov. 6, 2013).
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preparation and/or submission of IAA’s insurance claim; how the claim was calculated; and the
underlying documents utilized in determining the amount of IAA’s claimed damages.” [Filing
No. 197, at ECF p. 8.] Moreover, IAA’s work-product communications contain mental
processes, which even upon a showing of substantial need are protected from disclosure.
Caremark, Inc. v. Affiliated Computer Services, Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000).
Documents designated as work product need not be produced.
C. IAA’s hybrid experts
Travelers submits that it requested production of the documents IAA provided to its
hybrid experts Flandermeyer and Potosnak to consider in formulating their opinions, but IAA has
refused to produce them. According to IAA, it identified by Bates number the documents
reviewed by Flandermeyer and Potosnak. Moreover, IAA asserts Flandermeyer’s disputed quick
access personal file included materials that IAA previously produced or made available to
Travelers to inspect and copy. This fact is confirmed by IAA’s December 31, 2014, letter
identifying the Bates numbers for documents Flandermeyer would use in his deposition [Filing
No. 169-22, at ECF p. 2-4], and noting in a December 16, 2014, letter that Flandermeyer’s
testimony would be based on documents located in the job file that was produced or otherwise
made available for Travelers’ inspection. [Filing No. 197-2, at ECF p. 3.] Flandermeyer’s
deposition further supports that IAA provided Travelers the relevant information its hybrid
experts reviewed. Flandermeyer testified at his deposition that he only reviewed the information
IAA identified as responsive and non-privileged in its December 31, 2014, letter. [Filing No.
169-10, at ECF p. 4, 6.] IAA has already produced and identified the documents considered by
its hybrid experts and need not produce additional information. Patterson v. Avery Dennison
Corp., 281 F.3d 676, (7th Cir. 2002) (“Although there is a strong public policy in favor of

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disclosing relevant materials, Rule 26(b)(2) . . . empowers district courts to limit the scope of
discovery if the discovery sought is unreasonably cumulative or duplicative.”).
III. Conclusion
For the foregoing reasons, IAA’s supplemental brief [Filing No. 130] is granted in part
and denied in part. Travelers shall produce privileged documents discussing expense
categorization [in camera Travelers’ Ex. 27] and supplement its privilege log to more accurately
reflect its privileged communications. Travelers shall further supplement its privilege logs so
that communications containing routine legal advice that were not created for the primary
purpose of aiding in possible future litigation are not designated as work product.
Travelers’ motion to compel [Filing No. 159] is also granted in part and denied in part.
IAA shall produce privileged communications containing underlying facts. [See, e.g., in camera
Filing No. 160-10 log entry 11; Filing No. 160-13 log entries 11, 45, 79, 89, 121, 122, 190;
Filing No. 160-14 log entries 5, 7, 8, 11, 21, 23, 294, 296] Moreover, IAA shall supplement its
privilege log to include the author of privileged attachments and reclassify communications
designated as work product that have a primary purpose of submitting its insurance claim. The
production/supplementation ordered in this entry shall be completed within 28 days.
Date: 8/7/2015
___________________________
Tim A. Baker
U.S. Magistrate Judge
Southern District of Indiana

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Distribution:
Michele A. Chapnick
GREGORY AND MEYER P.C.
[e-mail]
Jenny R. Buchheit
ICE MILLER LLP
[e-mail]
Nathaniel M. Uhl
ICE MILLER LLP
[e-mail]
Rebecca J. Seamands
ICE MILLER LLP
[e-mail]
Amanda M. Buishas
JOHNSON & BELL, LTD.
[e-mail]
Rick L. Hammond
JOHNSON & BELL, LTD.
[e-mail]
Samuel R. Stalker
JOHNSON & BELL, LTD.
[e-mail]

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