Cook v. State Farm Mutual Automobile Insurance Company

Filing 22

ORDER DENYING re 18 Appeal of Magistrate Judge Decision filed by Denise Cook, AND DENYING AS MOOT 19 Request filed by Denise Cook. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE COOK, conservator of the
ESTATE OF ANDREW COOK, a
protected individual
Plaintiff,
Case No. 11-10314
Hon. Lawrence P. Zatkoff

v.

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________/
ORDER
This matter is before the Court on Plaintiff’s objection [dkt 18] to Magistrate Judge Mark
Randon’s order granting Defendant’s Motion to Compel Responses to Defendant’s First Request
for Production of Documents [dkt 17], and Plaintiff’s request for stay of the magistrate’s order
granting Defendant’s motion to compel [dkt 19] . Defendant has filed a response to Plaintiff’s
objection. Plaintiff’s request for stay has not been fully briefed, but the Court finds it unnecessary
for the reasons set forth below. Therefore, the Court finds that the facts and legal arguments are
adequately presented in the parties’ papers such that the decision process would not be significantly
aided by oral argument. Therefore, pursuant to E.D. Mich. LR 7.1(f)(2), it is hereby ORDERED that
the objection be resolved on the briefs submitted.
I. BACKGROUND
Plaintiff, the conservator of Andrew Cook (“Cook”), filed this action to recover attendant
care benefits pursuant to Michigan’s No-Fault Act. Plaintiff’s Complaint alleges that Cook suffered
serious injuries in an automobile accident on February 28, 2010. As a result, Cook remained in a

coma for a duration of time. During this time, Defendant allegedly denied Cook insurance benefits
for “failure to cooperate.” It appears this denial was remedied between the parties before Plaintiff
filed this action.
When Cook awoke, he was unable to communicate verbally and he had lost control of the
motor functions on the left side of his body. The Macomb County Probate Court appointed Cook’s
mother, Plaintiff, as Cook’s conservator. Cook allegedly requires attendant-care services for
assistance with his daily needs. Defendant is Cook’s insurer and has purportedly paid for all
attendant care services provided to Cook by nursing agencies. Plaintiff, however, filed this case
seeking reimbursement for attendant care benefits provided to Cook by his family. Defendant has
purportedly only paid a portion of these benefits requested.
With respect to the instant objection, Defendant served a First Request for Production of
Documents on Plaintiff, requesting in No. 2, “Please produce any notes made by any attendant care
provider that document attendant care services provided to Andrew Cook.” In response to
Defendant’s request No. 2, Plaintiff objected, claiming the information was protected by the
attorney-client privilege and the attorney work-product doctrine. Defendant then filed a motion to
compel production of the documents requested in No. 2, which was referred to Magistrate Judge
Randon.
On June 2, 2011, Magistrate Judge Randon held a hearing on the motion. Based on the
hearing and papers before Magistrate Judge Randon, on June 13, 2011, a written order was entered,
which required Plaintiff to provide a supplemental response to Defendant’s request for information
concerning the attendant-care services provided to Cook and produce the notes made by any
attendant care provider that document attendant care services provided to Cook. On June 27, 2011,

2

Plaintiff filed the instant objection to the order. Plaintiff argues that Magistrate Judge Randon
incorrectly held that the attorney-client privilege and the attorney work product doctrine do not
apply to these communications.1 On the same day, Plaintiff filed a request to stay Magistrate Judge
Randon’s order until the Court decided Plaintiff’s instant objection.
II. STANDARD OF REVIEW
A district court judge “may reconsider any pretrial matter under this subparagraph (A) where
it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948).
III. ANALYSIS
A. ATTORNEY-CLIENT PRIVILEGE
Plaintiff objects to the order claiming Magistrate Judge Randon incorrectly held that Plaintiff
failed to establish that the requested documents were created for the purpose of obtaining legal
advice and that the documents record “facts” to be provided to a third-party. Plaintiff contends that
she always anticipated litigation with Defendant since Defendant had denied Cook his benefits while
in a coma. Plaintiff further asserts that the requested documents were not a contemporaneous log
of Plaintiff’s attendant-care services, but a document created to assist in legal advice from her
attorneys.
“In a diversity case, the court applies federal law to resolve work product claims and state

1

Plaintiff also incorporates her response to Defendant’s motion to compel [dkt 14].
3

law to resolve attorney-client claims.” In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir.
2006). Under Michigan law, the scope of the attorney-client privilege is narrow, “it attaches only
to confidential communications by the client to its advisor that are made for the purpose of obtaining
legal advice.” Fruehauf Trailer Corp. v. Hagelthorn, 208 Mich. App. 447, 450 (Mich. App.1995).
Once a showing is made that the documents in question are relevant, the burden to show that the
documents are not discoverable because they are encompassed within a privilege shifts to the party
asserting the privilege. Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306 (E.D. Mich.2000).
The Court finds Plaintiff’s objection and arguments unconvincing. First, the notes made of
attendant-care services provided to Cook are relevant to Plaintiff’s claims for benefits. See Fed. R.
Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.”). Second, having determined that the documents are relevant,
Plaintiff must show why the attorney-client privilege shields the notes from discovery. Plaintiff cites
to no authority or evidence in her objection to show that Magistrate Judge Randon’s findings were
clearly erroneous or contrary to law. Plaintiff fails to indicate how the attendant-care services notes,
although sent to her attorney, were made for the purpose of obtaining legal advice. See Freuhauf
Trailer Corp, 208 Mich. App. at 450. Thus, Plaintiff has failed to meet her burden, and the Court
denies her objection to Magistrate Judge Randon’s order with respect to the attorney-client privilege.

B. ATTORNEY WORK-PRODUCT DOCTRINE
Plaintiff also objects to the order claiming Magistrate Judge Randon incorrectly concluded
that the attorney work-product doctrine was inapplicable to the requested documents. According
to Plaintiff, the communications were created at the direction of counsel to assist in preparation for

4

litigation, and Defendant has failed to show a substantial need for the protected information.
Plaintiff asserts that Defendant has already received sufficient information from forms provided by
Defendant to Plaintiff, which she submitted to Defendant.
Fed. R. Civ. P. 26(b)(3) protects from discovery “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representatives
(including the other party’s attorney, . . . ), unless they are otherwise discoverable under Rule
26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ.
P. 26(b)(3)(A). “If the court orders discovery of those materials, it must protect against the
disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney
or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). The attorney workproduct doctrine provides less protection to the underlying facts in a document than the opinions,
judgments, and thought processes of a party’s attorney. Upjohn Co. v. U.S., 449 U.S. 383, 397–98
(1981).
Similar to Plaintiff’s first objection, her arguments that Magistrate Judge Randon incorrectly
held that the attorney work-product doctrine is inapplicable is deficient. First, the attendant-care
notes do not appear to contain any mental impressions, legal theories, or any statements of Plaintiff’s
attorney concerning this action. Second, Plaintiff has failed to produce sufficient evidence that the
documents were created for anticipation of litigation with Defendant. Plaintiff merely relies on her
unsupported allegations. Third, even assuming that the attendant-care services notes are factual
work product, the facts may be discovered if there is a substantial need for the documents. Fed. R.
Civ. P. 26(b)(3)(A). As Defendant points out, Plaintiff’s notes of the attendant-care services

5

provided to Cook are the only reliable evidence of the services provided to Cook. Moreover, the
Court finds Plaintiff’s argument that she filled out Defendant’s supplied-forms, and therefore, there
is not a substantial need for the notes is unpersuasive. Plaintiff fails to show that the information
contained on the forms is as detailed and contains the same facts that are in the attendant-care
services notes. As such, the Court rejects her objection to Magistrate Judge Randon’s order with
respect to the attorney work-product doctrine.2
Accordingly, IT IS ORDERED that Plaintiff’s objection [dkt 18] is DENIED, and Plaintiff
must comply with Magistrate Judge Randon’s order.
IT IS FURTHER ORDERED that Plaintiff’s request for stay of magistrate’s order granting
Defendant’s motion to compel [dkt 19] is DENIED as moot.
IT IS SO ORDERED.
S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: July 19, 2011
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on July 19, 2011.

S/Marie E. Verlinde
Case Manager
[phone]

2

Having addressed Plaintiff’s objection, her request for a stay of Magistrate Judge
Randon’s order is moot.
6