AKH Company, Inc. v. Universal Underwriters Insurance Company

Filing 215

ORDER on IN CAMERA Inspection re 123 MOTION to Compel Sufficient Written Responses and Production of Documents. Signed by Magistrate Judge Kenneth G. Gale on 10/17/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AKH COMPANY, INC.,

)
)
Plaintiff,
)
)
v.
)
)
UNIVERSAL UNDERWRITERS
)
INSURANCE COMPANY,
)
)
Defendant,
)
______________________________ )

Case No. 13-2003-JAR-KGG

ORDER ON IN CAMERA INSPECTION
In accordance with its previous ruling (Doc. 158) regarding Defendant’s
“Motion to Compel Sufficient Written Responses and Production of Documents”
(Doc. 123), the Court has reviewed, in camera, the documents it ordered to be
produced by Plaintiff.
In the Court’s previous Order, the undersigned Magistrate Judge held that
the facts presented by Defendant, “taken as a whole, establish a prima facie case
sufficient to invoke the crime-fraud exception to the attorney-client privilege –
false representations made by Plaintiff as to a material fact or the suppression of
facts which Plaintiff was under a legal or equitable obligation to communicate and
‘in respect of which [it] could not be innocently silent . . . .’” (See Doc. 158, at 42-

43 (quoting DuShane v. Union Nat. Bank, 223 Kan. 775, 759, 576 P.2d 674, 678
(1978)).1 The Court mandated parameters for an in camera inspection of certain
documents from Plaintiff. Plaintiff was ordered to provide to the Court all
communications between itself and counsel (whether coverage counsel or litigating
counsel) that were withheld on the basis of the attorney-client privilege or work
product doctrine that occurred from the completion of the unsuccessful mediation
in September 2012 until Defendant received the final draft of the settlement
agreement with RT in December 2012.
Plaintiff has produced, and the Court has reviewed, over 1,300 pages of
documents, consisting entirely of copies of e-mail communications. The Court
reviewed the communications for evidence of an intent by Plaintiff to conceal
material elements of the negotiations or settlement from Defendant. The Court has
found the following documents to be relevant to Defendant’s theory and, therefore,
discoverable:
AKH_13638-42
AKH_13649-50
AKH_13656-60
AKH_13670-75
AKH_13681-82 (email from K. Kepler to A. Andonian, et al.)

1

As stated in the previous Order, the facts previously presented by Defendant do
not, per se, establish fraud. Rather, standing alone and unrebutted, they would create a
prima facie case of fraud.
2

AKH_13697-703
AKH_13704-09
AKH_13729-30
AKH_13749-56
AKH_13766-69
AKH_13783-88
AKH_1378994
AKH_13864-68
AKH_13869-70
AKH_13873-78
AKH_13880-81 (email from M. Schaeper to G. Dassof, et al.)
AKH_13890-91
AKH_13905-07
AKH_13912-13
AKH_13916-19
AKH_13927-29
AKH_13932-38
AKH_13942-43
AKH_13954-61
AKH_13972-75
AKH_13995-97
AKH_13998
AKH_13999-4006
AKH_14046-47
AKH_14066-68
AKH_14069-76
AKH_14087-93
AKH_14102-05
AKH_14106-07
AKH_14111-14
AKH_14146
AKH_14222
AKH_14259
AKH_14260-67
AKH_14283-85
AKH_14292-96
AKH_14350-55
AKH_14366-70
3

AKH_14376-78
AKH_14380-87
AKH_14392-401
AKH_14429-30
AKH_14445-51
AKH_14495-500
AKH_14504-05
AKH_14514-32
AKH_14544-45
AKH_14647-48
AKH_14675
AKH_14750-53
AKH_14761-67
AKH_14819-821
AKH_14822-23
AKH_14824-30
AKH_14841-49
AKH_14850-53
AKH_14854-55
AKH_14857 (email from M. Schaeper to J. Lowe)
AKH_14865-66
AKH_14878-79
AKH_14880
AKH_14885-887
AKH_14929-30
AKH_14931
AKH_14932
AKH_14936-37
AKH_14940-41
AKH_14944-45
AKH_14946
AKH_14963
AKH_14964-65
AKH_14975-77
The documents shall be provided to Defendant, at the office of defense counsel,

4

within 2 weeks of the date of this Order.2 All of these documents are to be
produced as “Confidential” under the existing protective order (Doc. 87).
Additional documents reviewed in camera may be relevant to Plaintiff’s
defense of Defendant’s theory. The Court will not, however, hold the privilege
waived as to such documents. In the event that Plaintiff intends to use such
documents as evidence, Plaintiff must produce the same.

IT IS THEREFORE ORDERED that, pursuant to the Court’s previous
Order (Doc. 158) granting Defendant’s Motion to Compel Production of
Documents (Doc. 123), the above enumerated documents are to be produced
forthwith.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this ___ day of October, 2014.

KENNETH G. GALE
United States Magistrate Judge

2

The Court reiterates that the documents do not, in and of themselves,
establish fraud. Rather, standing alone and unrebutted, the documents may create a
prima facie case of fraud.
5