Progressive Northwestern Insurance Company v. Gant
MEMORANDUM AND ORDER overruling without prejudice 189 Objection to Order of Magistrate Judge. Signed by Chief District Judge Julie A Robinson on 7/11/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 15-9267-JAR-KGG
GABRIEL GANT, INDIVIDUALLY
AND AS HEIR AT LAW OF KATHRYN
GANT, AND GABRIEL GANT, AS
ADMINISTRATOR OF THE ESTATE OF
KATHRYN GRANT, DECEASED, AND
GABRIEL GANT, AS NEXT FRIEND OF
M.G., F.G., AND C.G.,
MEMORANDUM AND ORDER
This matter is presently before the Court on Defendant/Counterclaim Plaintiff Gabriel
Gant’s Objection in Part to Magistrate Gale’s Order on Motion to Compel dated February 16,
2017 (Doc. 189), in which the Magistrate Judge denied Defendant’s motion to compel
production of certain documents with respect to which Plaintiff Progressive Northwestern
Insurance Company (“Progressive”) had asserted the attorney-client privilege. Having carefully
reviewed the argument of the parties, the Court is now prepared to rule. For the reasons
explained in detail below, the objection is overruled without prejudice.
This case arises out of a fatality vehicle collision that occurred in June 2011. Additional
facts relating to this case and the underlying lawsuit stemming from the fatality collision were
summarized by this Court in its Memorandum and Order denying in part Plaintiff’s motion to
dismiss Gant’s Amended Counterclaim,1 which the Court incorporates by reference herein.
After serving a request for production and interrogatories on Progressive, Gant contended
that Progressive withheld from production certain documents and information. Relevant to these
proceedings, Gant contends that by filing the present declaratory judgment action requesting a
finding that it acted reasonably in the defense of the underlying lawsuit, Progressive waived any
claim to the attorney-client privilege, and asked Judge Gale to compel Progressive to release
internal communications and other documents that address Progressive’s handling of the internal
lawsuit. After analyzing the waiver issue, Judge Gale ruled there was no adequate justification
for such a blanket waiver.2
Fed. R. Civ. P. 72(a) allows a party to provide specific, written objections to a magistrate
judge’s non-dispositive order. The court does not conduct a de novo review; rather, it applies a
more deferential standard under which the moving party must show that the magistrate judge’s
order is “clearly erroneous or contrary to law.”3 The court must affirm the magistrate judge’s
order unless the entire evidence leaves it “with the definite and firm conviction that a mistake has
been committed.”4 A magistrate judge’s order is contrary to law if it “fails to apply or
misapplies relevant statutes, case law or rules of procedure.”5
In his motion to compel, Gant argued that Progressive waived the attorney-client
privilege with respect to internal communications about the handling of the underlying lawsuit
See Doc. 237.
Doc. 186 at 16–18.
Fed. R. Civ. P. 72(a); see Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 494 (D. Kan. 1997).
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)); see Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D. Kan. 1991)
(district court will generally defer to magistrate judge and overrule only for clear abuse of discretion).
Walker v. Bd. of Cty. Comm’rs of Sedgwick Cty., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan.
July 13, 2011) (quotation omitted).
during the pendency of the underlying lawsuit by placing the protected information “at issue” by
including it in the Amended Complaint. Judge Gale disagreed after applying the Hearn
approach frequently utilized in this District.6 Under Hearn, three factors must be present to
establish an implied waiver of the attorney-client privilege:
(1) assertion of the privilege was the result of some affirmative act, such as
filing suit, by the asserting party; (2) through this affirmative act, the asserting
party put the protected information at issue by making it relevant to the case; and
(3) application of the privilege would have denied the opposing party access to
information vital to [its] defense.7
Judge Gale concluded that merely filing a lawsuit does not waive the privilege of a
plaintiff in communication with its attorneys about the subject matter of the lawsuit, and that
waiver does not occur when, as in this case, “the attorney-client communications are merely
relevant to claims” rather than “integral” to the claim itself.8 Judge Gale explained, “[t]o hold
otherwise would be dangerously close to finding an automatic waiver of the attorney-client
privilege whenever this type of declaratory judgment action is filed.”9 Significantly, Judge Gale
left open the possibility that certain, more specific categories of otherwise protected information
are “integral” to the claims at issue, noting Gant did not argue waiver of the privilege regarding
particular types of categories or information or specific documents, but merely the privilege
should be deemed waived as to all “internal communications and other documents that address
Progressive’s handling of the underlying lawsuit.”10
Moreover, Judge Gale stated that his conclusion regarding waiver could change if
See Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975); see also Frontier Ref., Inc. v. Gorman-Rupp
Co., 136 F.3d 695, 699–702 (10th Cir. 1998) (applying Hearn test).
Seneca Ins. Co. v. W. Claims, Inc., 774 F.3d 1272, 1276 (10th Cir. 2014) (quoting Frontier Ref., Inc., 136
F.3d at 701) (emphasis and modification in original).
Doc. 186 at 17 (quoting AKH Co. Inc. v. Universal Underwriters Ins. Co., 300 F.R.D. 684, 694 (D. Kan.
2014) (citation omitted)).
Id. at 17–18.
Progressive interposes the communications with its attorneys in its defense of Gant’s
counterclaims.11 As detailed in this Court’s recent order denying Progressive’s motion to
dismiss Gant’s breach of contract counterclaim, an insurance company may be vicariously liable
for the actions of the attorney defending the case where the attorney’s acts or omissions were
directed, commanded or knowingly authorized by the insurer.12
The Court concludes that the Magistrate Judge did not clearly err in rejecting Gant’s
broad assertion of a blanket waiver with respect to the claims in Progressive’s declaratory action.
The Court notes that Judge Gale’s Order does not preclude a more particularized request for
production based on a renewed assertion of waiver of the privilege regarding specific documents
or categories of information, especially in the context of any answer Progressive files to the
Amended Counterclaim. In so ruling, the Court does not offer an opinion on the merits of such a
For these reasons, the Court overrules Gant’s objections, without prejudice to renewal
consistent with this and Judge Gale’s opinion.
IT IS THEREFORE ORDERED BY THE COURT that Defendant/Counterclaim
Plaintiff Gabriel Gant’s Objection in Part to Magistrate Gale’s Order on Motion to Compel dated
February 16, 2017 (Doc. 189) is overruled without prejudice.
IT IS SO ORDERED.
Dated: July 11, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
Doc. 237 at 9 (citing Hackman v. W. Agr. Ins. Co., 275 P.3d 73 (Table), 2012 WL 1524060, at *16 (citing
Pac. Emp’rs Ins. Co. v. P.B. Hoidale Co., Inc., 789 F. Supp. 1117, 1122 (D. Kan. 1992)).
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