Blackmon et al v. Bracken Construction Company, Inc. et al

Filing 313

ORDER denying 295 Motion for Appeal/Review and Objections to Magistrate Judge's November 16, 2020 Order. Defendants shall comply with the Magistrate Judges November 16, 2020 Order. Signed by Judge Brian A. Jackson on 8/26/2021. (ELW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TED MARIO BLACKMON, ET AL.

CIVIL ACTION

VERSUS
BRACKEN CONSTRUCTION CO.,
INC., ET AL.

NO. 18-00142-BAJ-SDJ

ORDER
Before the Court is Charter Oak, Travelers Property, and Travelers
Excess’s Motion for Appeal/Review and Objections to Magistrate Judge’s
November 16, 2020 Order. (Doc. 295). Defendants seek an order from this Court
reversing in part the United States Magistrate Judge’s Order on Plaintiff’s Motion to
Compel (Doc. 287). Specifically, Defendants request that the Court set aside those
portions of the Magistrate Judge’s Order which require the Insurer Defendants to
produce any communications or documents that they contend are subject to the
attorney-client or work product privileges, including those documents “reflecting the
Insurer Defendants’ evaluation of the value of the claims regarding Ted Blackmon,
Khance Blackmon, or Shemika Robinson.” (Doc. 295-1, p. 2). The Motion is opposed.
(Doc. 298). A reply to the Opposition was filed by the Defendants. (Doc. 304).
For the foregoing reasons, the Motion is DENIED.
I.

BACKGROUND
On May 13, 2019, Plaintiffs sent Requests for Admission, Interrogatories, and

Requests for Production to the Insurer Defendants, including Anthony Ver Meer
Charter Oak Fire Insurance Company, Travelers Property Casualty Company of
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America, and Travelers Excess and Surplus Lines Company. (Doc. 287, at p. 4). In
response, the Insurer Defendants objected to most of Plaintiffs’ written discovery.
(Id.). When the parties were unable to resolve the matter, Plaintiffs filed a Motion to
Compel (Doc. 213).
On November 16, 2020, the Magistrate Judge found that the Insurer
Defendants had waived their attorney-client privilege and work product protections
as to certain topics because the Insurer Defendants disclosed facts pertaining to the
underlying claims in response to Plaintiff’s interrogatories, and because they failed
to describe the documents in their privilege log with sufficient particularity.
(Doc. 287, p. 20–26). Defendants now seek to overturn these portions of the
Magistrate Judge’s Order. (Doc. 295).
II.

LEGAL STANDARD
Federal Rule of Civil Procedure (“Rule”) 72 confers upon magistrate judges the

responsibility to make determinations or recommendations for pretrial matters.
Magistrate judges can hear, decide, and issue orders for pretrial matters that are not
dispositive of a party's claim. FED. R. CIV. P. 72(a); see Fisher v. Waste Mgmt. of La.,
LLC, No. 17-CV-00246-BAJ-RLB, 2019 WL 2713053, at *1 (M.D. La. June 28, 2019).
Rule 72(a) permits a district judge to review decisions on nondispositive motions by
the magistrate judge and “modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” FED. R. CIV. P. 72(a).
Under this standard, the magistrate judge's findings “should not be rejected
merely because the court would have decided the matter differently.” Ordemann v.
Unidentified Party, No. CIV. A. 06-4796, 2008 WL 695253, at *1 (E.D. La.
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Mar. 12, 2008) (quoting Rubin v. Valicenti Advisory Svcs., Inc., 471 F. Supp. 2d 329,
333 (W.D.N.Y. 2007)). Rather, the clearly erroneous standard requires that the
district court affirm the decision of the magistrate judge unless “on the entire
evidence [the court] is left with a definite and firm conviction that a mistake has been
committed.” Id. (citing Moody v. Callon Petroleum Operating Co., 37 F. Supp. 2d 805,
807 (E.D. La. 1999)); see also Vatter v. Navistar Int'l Corp., 150 F. Supp. 3d 703, 706
(M.D. La. 2015) (citing United States v. Stevens, 487 F.3d 232, 240 (5th Cir. 2007)).
Similarly, a magistrate judge's order is “contrary to law” only if it fails to apply or
misapplies relevant statutes, case law, or rules of procedure. Ordemann, No. CIV. A.
06-4796, 2008 WL 695253 at *1 (citing, e.g., DeFazio v. Wallis, 459 F. Supp. 2d 159
(E.D.N.Y. 2006)).
III.

ANALYSIS
A. Attorney-Client and Work Product Privileges
Defendants object to the Magistrate Judge’s findings regarding attorney client

and work product privileges related to certain documents. (Doc. 295-1, p. 2). The
Magistrate Judge found that both the attorney-client and work product privileges
were inapplicable to certain claim file materials. (Doc. 287, p. 37). In the alternative,
the Magistrate Judge found that, “[e]ven if the Court assumed that both the
attorney-client privilege and work product applied, . . . Defendants have waived any
privilege for those underlying materials.” (Doc. 287, p. 37). Specifically, the
Magistrate Judge found that Defendants had placed certain “claim file materials that
are related to the Blackmons and fall within the scope of discovery . . . at issue by
relying on them to defend against Plaintiffs’ allegations.” (Doc. 287, p. 39).
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Defendants argue that “the Magistrate Judge’s opinion disregards the
tripartite relationship of confidence between an insurer, an insured, and an attorney
hired by the insurer to represent the insured against a third-party claim.” (Doc. 295-1,
p. 7). Defendants further argue that “the Magistrate erred in finding privileges
inapplicable solely because Ted Blackmon did not immediately retain counsel.”
(Doc. 295-1, p. 8). Defendants have not cited any contrary authority or rule of
procedure that clearly demonstrates that the Magistrate Judge erred in finding that
attorney-client and work product privileges do not apply under the circumstances of
this case.
Defendants also disagree with the Magistrate Judge’s finding that, even if the
privileges were to apply, they were waived. Defendants argue that they did not place
any communications at issue “merely by detailing each of the insurance adjusters’
conversations with the Blackmons or their attorneys in response to Interrogatory
No. 9 and in the declarations of Ver Meer and Matt Willson.” (Doc. 287 p. 11). The
Defendants also assert that they did not place any valuations at issue in response to
the same interrogatory. (Id. at p. 17). The Insurer Defendants’ response to
Interrogatory No. 9 detailed the steps Defendants took to handle and settle the
Blackmons’ claims and certain conversations the adjusters had with Ted or Ruthie
Blackmon. (Doc. 287, p. 23–24). Because Defendants relied on those materials to
defend against Plaintiffs’ allegations, the Magistrate Judge found that Defendants
waived their privilege. (Doc. 287, p. 39). Defendants assert that “the Magistrate’s
reliance” on the aforementioned conversations “is misplaced.” (Doc. 295-1, p. 17).

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In support, Defendants provide additional persuasive authority, but fail to cite
to any clear error made by the Magistrate. See (Doc. 295-1, p. 7–8). Because the Court
is not left with a “definite and firm conviction that a mistake has been committed,”
and because the Magistrate Judge did not misapply relevant statutes, case law, or
rules of procedure, the Court affirms the Magistrate Judge’s Order. See Ordemann v.
Unidentified

Party,

No.

CIV.

A.

06-4796,

2008

WL

695253,

at

*1

(E.D. La. Mar. 12, 2008); see also Vatter v. Navistar Int'l Corp., 150 F. Supp. 3d 703,
706 (M.D. La. 2015).
B. Privilege Logs
Defendants next argue that that their privilege logs “substantially” complied
with Rule 26(b)(5) and Local Rule 26(b), and that the Magistrate Judge erred in
finding that the Insurer Defendants waived certain privileges by submitting an
inadequate privilege log. (Doc. 295-1, p. 25). Defendants appear to argue that they
tried their best to create a privilege log in the face of burdensome discovery requests,
and therefore the Court should overrule the Magistrate Judge’s finding that the log
was inadequate. (Doc. 295-1, p. 28). Defendants further contend that, even if the
privilege log is found to be inadequate, “waiver is not an appropriate remedy.” (Doc.
295-1, p. 32). While Defendants maintain that “[e]xamples abound where the Middle
District and other Louisiana federal courts have declined to impose such a harsh
remedy,” (Doc. 295-1, p. 35), they fail to cite to any case law to show that the
Magistrate Judge lacks the authority to impose such a remedy.
In the alternative, Defendants request an additional opportunity to submit a
supplemental privilege log with respect to the documents at issue, or an opportunity
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for in camera review. (Doc. 295-1, p. 36–37). Both requests were previously denied by
the Magistrate Judge. (Doc. 287, p. 37) (finding that “any further opportunity to
establish either privilege will be futile [a]s . . . both [privileges] have been waived. In
other words, the documents would still be subject to production, despite any privilege
that once applied.”)
Having carefully considered the underlying Complaint, the Magistrate Judge’s
Order, the Objection at issue, and related filings, the Court finds that the
Magistrate Judge’s Order is not clearly erroneous or contrary to law. See
Fed. R. Civ. P. 72(a). Because Accordingly, Defendants’ Objection to the Magistrate
Judge’s Order will be overruled. (Doc. 295).
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion (Doc. 295) is DENIED. Defendants

shall comply with the Magistrate Judge’s November 16, 2020 Order. (Doc. 287).

Baton Rouge, Louisiana, this 26th day of August, 2021

_____________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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