State Farm Mutual Automobile Insurance Company v. Hawkins

Filing 141

ORDER granting in part and denying in part 137 Motion to Compel; granting in part and denying in part 139 Motion to Take Deposition from Dawanna Ruff. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Plaintiff,
v.

Case No. 08-10367

DEANNA HAWKINS,
Defendant.
/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
COMPEL AND MOTION TO TAKE DEPOSITION FROM DAWANNA RUFF
Pending before the court are the latest in a long series of discovery motions filed
in this matter: Plaintiff State Farm Mutual Automobile Insurance Co.’s motion to compel,
filed on April 29, 2011, and Plaintiff’s motion to depose Dawanna Ruff, filed on July 28,
2011. Both motions concern the privilege log filed on April 8, 2011, by third-party
witnesses Arthur Liss and Liss, Seder & Andrews, PC (“the Firm”) in response to the
court’s March 18, 2011 order directing them to produce certain documents relating to
Defendant Deanna Hawkins and her niece Fecchia Hawkins (“Fecchia”). For the
following reasons, the court will order Liss and the Firm to produce the documents listed
on the privilege log, and thus will grant in part and deny in part Plaintiff’s motions.
The root of the current dispute dates to at least July 6, 2010, when Plaintiff
served subpoenas on Liss and the Firm demanding production of documents relating to
Defendant and Fecchia. Liss and the Firm filed a motion to quash the subpoenas on
July 21, 2010, which the court granted in part and denied in part on February 10, 2011.

In accordance with this ruling, on March 18, 2011, the court entered an order modifying
the subpoenas. The court directed Liss and the Firm to produce all documents created
on or after October 2003 relating to Fecchia or to Defendant’s attendant care claims,
guardianship and conservatorship for Fecchia, and bankruptcy proceedings. However,
the court circumscribed production to, among other limitations, documents admissible in
the case against Defendant. The court also instructed that, should Liss and the Firm
withhold any documents on claim of privilege or inadmissibility in the case against
Defendant, they must identify these documents in a log and file them with the court for
in camera inspection.
In response to the modified subpoenas, on April 18, 2011, Liss and the Firm
served a single document on Plaintiff—a telephone message from Ruff, Fecchia’s aunt,
dated May 18, 2005. Additionally, Liss and the Firm filed a privilege log listing 150
documents that were provided to the court for in camera review. Plaintiff then filed, on
April 29, 2011, a motion to compel: supplementation of the privilege log with additional
information about the documents included therein; production of all documents
improperly included in the privilege log; and a second deposition of Liss. On July 28,
2011, Plaintiffs filed a motion seeking permission to depose Ruff and requesting a ruling
on the pending motion to compel.
After inspecting the documents identified on the privilege log, the court concludes
that none are subject to the evidentiary privileges claimed by Liss and the Firm. The
court uncertain why every document is listed as privileged “attorney work product,” and
several documents allegedly contain a privileged “attorney client communication.” The

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court explicitly held that documents from October 2003 and later1 are discoverable
under the crime-fraud exception. (2/10/11 Order 15.) See generally In re Grand Jury
Proceedings, G.S. & F.S., 609 F.3d 909, 912 (8th Cir. 2010) (explaining that evidence
normally privileged as an attorney-client communication or attorney work product is
discoverable if made in furtherance of a crime or fraud). The court will not review the
detailed reasoning presented for this holding in previous orders, (see 2/10/11 Order 915; 6/14/10 Order 6-9), but will observe only that the privilege log does not challenge
the court’s prior determination that Defendant, Liss, and the Firm relinquished any
attorney-client or work-product privilege with respect to these documents.
Liss and the Firm’s assertion that a few of the documents are protected as
“common interest” also fails. The court held in its June 4, 2010 order that some
communications between Liss and Dean Greenblatt, an attorney who formerly
represented Defendant in the present suit, may qualify for protection under the attorneyclient privilege when they concerned Defendant’s and the Firm’s common litigation
interest in defending against Plaintiff’s fraud claim. (6/4/2010 Order 11-17; see also
7/14/2010 Order 4-5). Nevertheless, there is a plethora of reasons why the commoninterest theory does not preserve any attorney-client privilege over the documents at
issue here. All of the documents identified relay communications between Liss or other
attorneys from the Firm and Darren Findling, who is identified as a “probate attorney”
and seems to have participated in proceedings concerning Fecchia in Michigan Probate

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The modified subpeonas are confined to documents from this period, which is
the time at which it appears that Fecchia Hawkins had ceased living with, and receiving
attendant care from, Deanna Hawkins.
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Court. Aside from the fact that it is far from clear that Findling represented Defendant,
virtually none of the documents relate underlying communications between Findling and
Defendant or between the Firm and a Firm attorney. (See 7/14/2010 Order 4 (“[F]or
[the common interest exception] to apply there must be an underlying privileged
communication between the Firm and a Firm attorney or between Defendant and
Greenblatt.”).) More importantly, none of the documents implicate Liss, the Firm, and
Defendant’s common interest in defending against Plaintiff’s fraud allegation, (see
6/4/2010 Order 14 (“After the underlying communication is determined to be privileged,
the common interest exception’s other requirements must be met, e.g., the
communication must be related to a common litigation interest.”)); instead, they
concern, for the most part, Fecchia’s guardianship and conservatorship proceedings in
state court.
Just as Liss and the Firm’s claims of privilege lack support, so do their assertions
that documents noted on the privilege log are not discoverable because they are not
admissible in the case against Deanna Hawkins. Again, Liss and the Firm do not
explain the basis for their numerous claims of inadmissibility, and the court can see no
reason that the documents should be sequestered outside the scope of the modified
subpoenas. All of the documents pertain to Liss’s and the Firm’s representation of
Defendant in her efforts to obtain attendant-care benefits from Plaintiff. As such, the
documents are not so patently irrelevant to Plaintiff’s claims against Defendant as to
make them inadmissible at trial or unlikely to lead to the discovery of admissible
evidence. See Fed. R. Civ. P. 26(b)(1). Therefore, the documents do not qualify as

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“documents that would not be admissible in this case against Deanna Hawkins” as
defined in the court’s March 18, 2011 order. (3/18/11 Order Mod. Subpoenas 2.)
Because Liss and the Firm have not carried the burden of demonstrating that the
documents identified in the privilege log are not discoverable under the terms of the
modified subpoenas or due to an evidentiary privilege, the court will grant Plaintiff’s
request that they be produced. In light of this ruling, the court will deny, without
prejudice, Plaintiff’s requests for an order compelling additional information about the
documents listed on the privilege log, compelling a second deposition of Liss, and
allowing the deposition of Dawanna Ruff. Accordingly,
IT IS ORDERED that Plaintiff’s motion to compel [Dkt. # 137] and motion to take
deposition from Dawanna Ruff [Dkt. # 139] are GRANTED IN PART AND DENIED IN
PART. They are GRANTED in that the documents identified in the April 8, 2011
privilege log [Dkt. # 135] were improperly included therein and should be produced to
Plaintiff under the court’s March 18, 2001 order [Dkt. # 134]. It is DENIED, without
prejudice, with respect to Plaintiff’s requests that the court: compel third-party witnesses
Liss and the Firm to provide additional information about the documents listed on the
privilege log; compel a second deposition of Liss; and allow the deposition of Ruff.
IT IS FURTHER ORDERED that third-party witnesses Liss and the Firm are
DIRECTED to produce all documents identified in the April 8, 2011 privilege log to
Plaintiff on or before October 7, 2011.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 27, 2011
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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 27, 2011, by electronic and/or ordinary mail.

s/Lisa G. Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\JUDGE'S DESK\C2 ORDERS\08-10367.HAWKINS.GrantInPartMotCompel.set.wpd

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