Keathley v. Grange Insurance Company of Michigan
OPINION AND ORDER Overruling in part and sustaining in part 54 Objections to Magistrate Order re 53 Order on Motion for Sanctions filed by Timika Keathley, finding as moot 51 MOTION status on pending motions.*SEE ORDER FOR DETAILS AND DEADLINES* Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-11888
Paul D. Borman
United States District Judge
COMPANY OF MICHIGAN,
Mona K. Majzoub
United States Magistrate Judge
OPINION AND ORDER
(1) OVERRULING IN PART AND SUSTAINING IN PART PLAINTIFF’S
OBJECTIONS TO MAGISTRATE JUDGE MAJZOUB’S JUNE 30, 2016
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S FIRST
MOTION TO COMPEL AND GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S SECOND MOTION TO COMPEL (ECF NO. 45);
(2) REVERSING IN PART THE MAGISTRATE JUDGE’S
JUNE 30, 2016 ORDER (ECF NO. 43);
(3) GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL (ECF NO. 8);
(4) ORDERING DEFENDANT TO SUBMIT
CERTAIN DOCUMENTS TO THE COURT FOR IN CAMERA REVIEW;
(5) OVERRULING PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE
MAJZOUB’S JANUARY 19, 2017 ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION
FOR SANCTIONS AND TO COMPEL (ECF NO. 54);
(6) AFFIRMING THE JANUARY 19, 2017 ORDER (ECF NO. 53);
(7) ORDERING LIMITED DISCOVERY REGARDING GRANGE’S
FAILURE TO PRODUCE CERTAIN PHOTOGRAPHS; AND
(8) DENYING AS MOOT PLAINTIFF’S MOTION
FOR STATUS ON PENDING MOTIONS (ECF NO. 51)
Before the Court are two sets of Objections (ECF Nos. 45 and 54) filed by the
Plaintiff to two separate non-dispositive Orders issued by Magistrate Judge Majzoub
on June 30, 2016 (ECF No. 43) and January 19, 2017 (ECF No. 53). Defendant has
filed Responses to both sets of Objections (ECF Nos. 47 and 56, Responses) and
Plaintiff filed a Reply to Defendant’s Response to Plaintiff’s Objections to the 1/19/17
Order (ECF No. 57, Reply). Having reviewed the Orders and the Objections pursuant
to Fed. R. Civ. P. 72(a) and 28 U.S.C. § 636(b)(1)(A), the Court overrules in part and
sustains in part Plaintiff’s Objections and affirms in part and reverses in part the
Magistrate Judge’s Orders for the reasons that follow.
In this action, Plaintiff seeks to recover under a policy of insurance issued by
Defendant Grange Insurance Company (“Grange”) for loss due to water damage
Plaintiff claims occurred at her home as a result of frozen/burst pipes. Grange has
denied coverage for a variety of reasons, including that the Plaintiff allegedly “failed
to exhibit the damaged property to Grange.” Plaintiff has filed numerous motions to
compel discovery, and most recently filed a motion for sanctions for Grange’s alleged
failure to comply with Magistrate Judge Majzoub’s discovery Orders. Dissatisfied
with the Magistrate Judge’s resolution of her motions, Plaintiff has filed Objections
to Magistrate Judge Majzoub’s June 30, 2016 and July 19, 2017 Orders.
STANDARD OF REVIEW
28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) both
provide that a district judge must modify or set aside any portion of a magistrate
judge's non-dispositive pretrial order found to be "clearly erroneous or contrary to
law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The United States Supreme
Court and the Sixth Circuit Court of Appeals have stated that “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) (explaining
the clearly erroneous standard under Rule 52(a)); Hagaman v. Comm'r of Internal
Revenue, 958 F.2d 684, 690 (6th Cir. 1992) (quoting U.S. Gypsum Co.). See also
United States v. Mandycz, 200 F.R.D. 353, 356 (E.D. Mich. 2001) (explaining the
standard under Rule 72(a)).
This standard does not empower a reviewing court to reverse the Magistrate
Judge's finding because it would have decided the matter differently. Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (interpreting the clearly erroneous
standard in Rule 52(a)). The Sixth Circuit has noted that: “[t]he question is not
whether the finding is the best or only conclusion that can be drawn from the
evidence, or whether it is the one which the reviewing court would draw. Rather, the
test is whether there is evidence in the record to support the lower court's finding, and
whether its construction of that evidence is a reasonable one.” Heights Cmty. Cong.
v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).
“The ‘clearly erroneous’ standard applies only to the magistrate judge’s factual
findings; his legal conclusions are reviewed under the plenary ‘contrary to law’
standard. . . . Therefore, [the reviewing court] must exercise independent judgment
with respect to the magistrate judge’s conclusions of law.” Haworth, Inc. v. Herman
Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v. Glaser, 785
F. Supp. 684, 686 (S.D. Ohio 1992)). “‘An order is contrary to law when it fails to
apply or misapplies relevant statutes, case law, or rules of procedure.’” Mattox v.
Edelman, No. 12-13762, 2014 WL 4829583, at *2 (E.D. Mich. Sept. 29, 2014)
(quoting Ford Motor Co. v. United States, No. 08–12960, 2009 WL 2922875, at *1
(E.D. Mich. Sept. 9, 2009)).
Plaintiff’s 7/14/16 Objections to the Magistrate Judge’s 6/30/16
Plaintiff asserts three objections to the Magistrate Judge’s 6/30/16 Order:
(1) “Plaintiff objects to the Magistrate Judge’s Order allowing Grange
to submit an affidavit as to whether its document production was
complete as the Affidavit submitted is vague and raises more questions
than it answers.” (ECF No. 45 at 6, PgID 2264.)
The Court overrules this Objection. The Court affirms the Magistrate Judge’s
decision to permit Mr. Carr to file an amended affidavit and denies Plaintiff’s request
that Grange produce Mr. Carr for deposition. As discussed below, Magistrate Judge
Majzoub’s subsequently-issued January 19, 2017 Order further addressed this issue,
and required Mr. Carr to submit a more detailed affidavit, thereby mooting Plaintiff’s
Objection to the first Carr Declaration.
(2) “Plaintiff secondly objects to the Magistrate Judge’s Order denying
plaintiff’s motion with respect to defendant’s assertion of privilege as its
Privilege Log is vague and the documents withheld related to the claims
process.” (ECF No. 45, Pl.’s Objs. at 6, PgID 2264.)
The Court sustains this Objection in part and, for the reasons discussed below,
requires Grange to submit the documents specified below and listed on its Privilege
Log to this Court for in camera review.
Grange submits that other courts in this district have recognized that, “although
there is not Michigan law directly on point,” Michigan attorney-client privilege law
would embrace the widely-held view that “‘communications between an insurance
company and outside counsel retained to provide legal advice regarding coverage,
rather than to perform routine claims adjustment, remain protected by the attorneyclient privilege.’” AMI Stamping LLC v. ACE American Ins. Co., No. 14-cv-10716,
2015 WL 12990251, at *3 (E.D. Mich. Oct. 7, 2015) (Hluchaniuk, MJ), modified in
part on other grounds, 2015 WL 7252479 (E.D. Mich. Nov. 17, 2015) (Leitman, J.)
(quoting United States Fire Ins. Co. v. City of Warren, No. 10-cv-13128, 2012 WL
1454008, at *5 (E.D. Mich. April 26, 2012)).
The Court accepts this legal premise but also acknowledges the opposite and
well-understood principle that “in the context of an insurance claim,
‘[c]ommunications by attorneys acting as insurance claims investigators, rather than
as attorneys, are not protected by the attorney client privilege.’” 7 Mile & Keystone,
LLC v. Travelers Cas. Ins. Co. of America, No. 11-cv-12930, 2012 WL 6553585, at
*3 (E.D. Mich. Dec. 14, 2012) (quoting Flagstar Bank v. Fed. Ins. Co., No. 05-cv70950, 2006 WL 6651780, at *2 (E.D. Mich. Aug. 21, 2006)) (alteration in original).
“Defendant cannot simply delegate investigative work to a lawyer and claim it is
protected by the lawyer-client privilege or work-product doctrine.” Id. at *3.
In this instance the Court concludes that, as was the case in AMI Stamping and
Keystone, the Court’s in camera review of the claimed privileged communications
will serve to verify (or defeat) Grange’s assertion, which Grange bears the burden of
establishing, that Mr. Walker was retained solely for the purpose of, and did through
these many claimed privileged communications, provide only legal advice regarding
coverage. See AMI Stamping, 2015 WL 12990251, at *3 (“It is evident to the Court,
from the in camera review, that counsel were hired to provide legal advice regarding
coverage.”); Keystone, 2012 WL 6553585, at *3 (“Having reviewed the emails
containing the redactions in camera, the Court finds that they fall into two categories
. . . .”).
Accordingly, the Court sustains Plaintiff’s objection on this limited point,
REVERSES the Magistrate Judge’s 6/30/16 Order only to the extent that it denied
Plaintiff’s request for in camera review of the claimed privileged documents,
GRANTS IN PART Plaintiff’s motion to compel (ECF No. 8) and ORDERS Grange
to submit to the Court for in camera review, on or before April 26, 2017, the
following documents listed on its Privilege Log (ECF No. 8-13) and specifically now
requested to be produced by the Plaintiff for in camera inspection by the Court: Nos.
56-57, 90-98, 138-39, 141-42, 143-45, 187-89, 192-97, 215, 221, 227, 576, 578, 581,
582, 598, 599, 601-02, 603-50.
(3) “Finally, plaintiff objects to the Magistrate’s denial of the motion to
compel as the corporate representative should not have been instructed
by defense counsel not to answer questions pertaining to Grange’s
meeting at which it decided to deny Keathley’s homeowner’s insurance
claim.” (ECF No. 45, Pl.’s Objs. at 6-7, PgID 2264-65.)
The Court sustains this Objection to the extent that it requests the production
of certain additional materials allegedly authored by Ms. Jeane Strick, Grange’s
investigator, for in camera review by the Court. Ms. Strick has defined her role as
being one related solely to investigation, and not coverage, and to the extent that these
documents contain facts solely relating to her investigation of Plaintiff’s claim,
Plaintiff asserts that those facts are discoverable by the Plaintiff.
ORDERED to submit the following documents to the Court, on or before April 26,
2017, for in camera review: Documents 2409, 2421, 2425, 2427, 2447-2449,
identified in Plaintiff’s Objections at 15, PgID 2273.
The Court overrules the Objection to the extent that Plaintiff seeks to depose
Ms. Strick for a second time. The Magistrate Judge’s conclusion on this issue was not
clearly erroneous or contrary to law and the Court will not order Grange to produce
Ms. Strick for a second deposition at this time.
B. Plaintiff’s 1/31/17 Objections to the Magistrate Judge’s 1/19/17 Order
Plaintiff objects to that portion of the Magistrate Judge’s 1/19/17 Order that
denied Plaintiff’s request for spoliation sanctions and attorneys fees. Plaintiff argues
that the Magistrate Judge should have ordered that Grange face spoliation sanctions
for its failure to produce photographs that its inspector, Jason May, allegedly took
while surveying the damage at Plaintiff’s home. Specifically, Plaintiff requested that
the Court order that the jury be instructed that the missing photographs would have
depicted damage and broken pipes in Plaintiff’s home at the time of his inspection.
Magistrate Judge Majzoub declined the Plaintiff’s request for an adverse instruction
without prejudice, and ordered Grange to either produce the photographs or to file an
amended affidavit of its senior litigation counsel, Steven Carr, to more fully explain
the measures undertaken to locate Mr. May’s photographs.
The Court overrules Plaintiff’s Objection to this ruling and notes that
Magistrate Judge Majzoub denied Plaintiff’s request for spoliation sanctions without
prejudice. It was not clearly erroneous or contrary to law to require a more detailed
affidavit from Mr. Carr before awarding the drastic sanction of an adverse jury
instruction on the fundamental issue of whether Plaintiff demonstrated to Grange the
alleged damage to her home. The Magistrate Judge’s 1/19/17 Order is AFFIRMED.
However, this Court has now reviewed Mr. Carr’s Amended Declaration filed
in response to Magistrate Judge Majzoub’s Order and finds that it does not adequately
address the issue of Grange’s failure to produce the photographs taken by Mr. May
during his inspection of Plaintiff’s home.
May’s photographs are relevant and Grange had a duty to preserve
As Magistrate Judge Majzoub correctly concluded, any photographs taken by
Mr. May when he conducted his inspection of Plaintiff’s home were relevant to
resolving Plaintiff’s claim of loss. Grange denied Plaintiff’s claim in part based upon
her alleged failure to exhibit the claimed damage to Grange. Grange asserts that by
the time Mr. May visited Plaintiff’s home, repairs had been completed and according
to Mr. May he did not see, and therefore Grange suggests could not have
photographed, a pile of burst pipes. However, there is a genuine issue of material fact
regarding exactly what Mr. May did see and photograph when he visited, created at
the very least by the testimony of Joe Tison, who testified that the burst pipes were
still on site when Tison began his work and that he personally piled the pipes and
sectioned them off in an effort to preserve them for the insurance adjuster. Tison
testified that he would never “strip and rip” without the insurance company inspecting
first. (ECF No. 35-2, Pl.’s Mot. for Sanctions Ex. C, March 16, 2016 Deposition of
Joseph Tison at 17-18, 29, 50.) Tison testified that he personally accompanied Mr.
May when May took photographs of the house, and testified that May “did his job,”
and specifically testified that May did take photographs of the pile of debris and burst
pipes that Tison had collected and encapsulated on the basement floor. (Tison Dep.
54-55.) Ms. Margie Banks, Plaintiff’s independent adjuster, also confirmed at her
deposition that when Mr. May visited the home, there were still several areas of
broken pipes evident and that “Joe Tyson [sic] specifically pointed to Jason May and
told him he may want to photograph the broken pipes that were laying on the
basement floor, and he did.” (ECF No. 35-7, Pl.’s Mot. for Sanctions Ex. M, 11/19/15
Deposition of Margie Banks at 120, 122.) Thus, a reasonable juror could conclude
that May did indeed take photographs of a pile of debris that included the burst pipes.
These photographs would be relevant both to Plaintiff’s claim that the loss occurred
and to her ability to defeat Grange’s defense that she failed to exhibit the damaged
property to Grange.
Grange states that even if May did take photographs of the alleged burst pipes,
Grange had no duty to preserve those photographs at any time before it made its
coverage decision and issued its denial letter to Plaintiff on May 20, 2015. (ECF No.
56, Grange’s Resp. to Pl.’s Objs. at 9, PgID 3156.) Despite the fact that Grange
asserts the attorney-client privilege for communications with its outside counsel, Mr.
Walker, regarding “coverage” issues as early as July, 2014, Grange asserts that on
October 31, 2014, it “could not have reasonably anticipated litigation arising from a
claim the coverage for which Grange would not decide until months later.” (ECF No.
56, Def.’s Resp. to Pl.’s Objs. 9.) Grange argues that it had no duty to preserve the
photographs taken by Mr. May at any time on or before October 31, 2014, because
prior to that time, Grange was just involved in “coverage” analysis and had made no
final determination to deny Plaintiff’s claim.
While it may be true that Grange had not made a “final” decision to deny
coverage before October 31, 2014, it is clear that prior to that time, and certainly as
early as August, 2014, Grange had “issues and concerns” with Plaintiff’s claim and
was at a minimum preparing to challenge her claim for coverage and, allegedly,
seeking legal advice towards that end. Grange cannot dispute that there was a very
real possibility of a denial of coverage, and hence of a potential lawsuit by the
Plaintiff, at least as early as August 29, 2014, when it invoked the Examination Under
Oath (“EUO”) provision of the policy. As Mr. Walker explained to Plaintiff at her
I’m going to be straightforward with you from the get-go. Most of the
time when people submit an insurance claim if there’s coverage the
company pays the claim and that’s it. Most claims don’t go to
examination under oath. Typically there’s only an examination under
oath provision in your policy which is invoked if and when there are
certain problems, issues, concerns that require additional investigation
and this is definitely one of those claims, ok?
ECF No. 42-1, Pl.’s EUO 5:5-14 (filing stricken as premature). During this time,
Grange was at a minimum skeptical of Plaintiff’s claim and was repeatedly requesting
Plaintiff to submit additional evidence, including photographs, and cannot credibly
claim that at the same time it demanded photographic evidence from the Plaintiff, it
had no duty to preserve the very same type of evidence that may have existed in its
own claim file.
The Court finds that the photographs taken by Mr. May were relevant and that,
“coverage was an issue early on” in this case, AMI Stamping, 2015 WL 12990251, at
*3. Indeed, according to Grange’s privilege log, as early as July, 2014, Mr. Walker
was creating “notes” and labeling them “attorney work product.” (ECF Nos. 46-14
and 8-13, Grange Privilege Log.) Grange’s early suspicions as to the nature of this
loss perhaps protects Grange’s “coverage” communications with counsel as discussed
above, but also imposed on Grange, on these facts, the duty to preserve evidence at
least as of the time of Plaintiff’s EUO in August, 2014, and certainly at the time that
Mr. May severed his employment with Grange in September, 2014.
Steven Carr’s January 30, 2017 Amended Declaration is inadequate
and Plaintiff is entitled to further limited discovery regarding
Grange’s failure to produce May’s photographs.
As discussed above, the Court affirms the Magistrate Judge’s conclusion that
Plaintiff is not entitled at this time to spoliation sanctions or to depose Grange’s senior
litigation counsel, Steven E. Carr, with respect to whether Grange’s production is
complete as regards the May photographs. The Court does conclude, however, that
Mr. Carr’s Amended Declaration (ECF No. 55, Jan. 30, 2017 Amended Declaration
of Steven E. Carr), which the Magistrate Judge ordered be submitted in her January
19, 2017 Order, does not fully address the underlying question of exactly how it was
possible that the photographs that Mr. May concedes that he took, and believes that
he uploaded on to the Grange “CHIP” claim file system, could have failed to make
their way onto the CHIP system or, if they were uploaded to the system, how they
could have been permanently deleted from the CHIP system. Grange asserts in its
Response to Plaintiff’s Objections that even assuming that photographs were
transferred from Mr. May’s camera and/or laptop to Grange’s electronic file system,
“the only explanation” that Grange can identify for their absence from the file now
“relates to the reformatting and/or destruction of Jason May’s equipment.” (ECF No.
56, Def.’s Resp. to Objs. at 8, PgID 3155.) This suggests that the “CHIP system” is
locally stored on each employee’s individual computer, and not duplicated or
preserved on some type of Grange mainframe or company-wide network. This seems
implausible or at least is not well explained in Mr. Carr’s Amended Declaration. This
and many other unanswered questions lead the Court to conclude that, while the
Magistrate Judge correctly denied (without prejudice) Plaintiff’s request for spoliation
sanctions in her January 19, 2017 Order, and reasonably required instead that Mr. Carr
file the Amended Declaration, Plaintiff is now entitled to further limited inquiry into
Mr. Carr’s Amended Declaration, filed as ordered by the Magistrate Judge, is
insufficient to fully explain exactly what was done by Grange’s IT representative to
verify that Mr. May’s photos never made it on to Grange’s CHIP system, or to
determine (assuming they were uploaded as Mr. May believed they were) how (and
why) they were somehow deleted from the CHIP system. This information is critical
to the Court’s resolution of any request for spoliation sanctions. For example, is it
customary for Grange’s IT department to simply delete without question all
information saved locally to a departing employee’s laptop (or other company
equipment) without someone at Grange authorizing the deletion of information on that
equipment and making a determination whether any locally stored data should be
retained on a company network, for example information regarding a claim that is in
process at the time of the employee’s departure? Mr. Carr’s Amended Declaration
states that he “confirmed with Representative of Grange’s IT Department that . . . any
data stored on the equipment retained by Mr. May would have been erased in
preparation for providing the equipment to another Grange representative or the
equipment would have been destroyed if considered obsolete.” (ECF No. 55, Carr
Amended Declaration ¶ 4(g).) This simply does not address Grange’s general
protocols for preserving information that may be stored locally on a departing
employee’s laptop and whether those protocols were observed in the case of Mr.
May’s equipment. The Court concludes that more targeted discovery, specifically of
a representative of Grange’s IT department with knowledge of these issues, is
necessary in order to determine whether Grange followed standard company protocol
in “erasing” or “destroying” Mr. May’s equipment.
Furthermore, Mr. Carr’s
Amended Declaration provides no information whatsoever regarding how Mr. May’s
photos, assuming he did upload them to the CHIP system (a fact as to which there is
a genuine dispute of material fact), could have been permanently deleted from that
system and are now unretrievable. An individual from Grange’s IT department with
knowledge of the processes for entering data into the CHIP system and with
knowledge of Grange’s handling of that data once it becomes a part of the CHIP
system, would better be able to respond to these critical inquiries including whether
Mr. May’s claim file, notes and photographs were in fact uploaded to the CHIP
system and, if so, how any portions of those files were or could have been deleted
from the CHIP system, either by inadvertent error or by “erasing” material from Mr.
To address these shortcomings of Mr. Carr’s Amended Declaration, the Court
will permit Plaintiff to take the deposition of an individual from Grange’s IT
department with knowledge of these issues as they relate specifically to Mr. May’s
equipment and more generally to Grange’s IT protocols and the operation of the CHIP
system, including protocols for document uploading and file retention.
deposition shall take place on or before April 26, 2017. Plaintiff will then have until
May 15, 2017, to renew its motion for spoliation sanctions if it so desires. Any such
motion will be limited to ten (10) pages in length (conforming in all respects with this
District’s local rules governing formatting of papers). Grange will be permitted to
respond to any such motion, likewise limited to ten (10) properly formatted pages, by
May 30, 2017. Plaintiff may reply within one week of receipt of Grange’s response
in a properly formatted reply limited to five (5) pages.
For the foregoing reasons, the Court:
(1) OVERRULES IN PART AND SUSTAINS IN PART Plaintiff’s
Objections to Magistrate Judge Majzoub’s June 30, 2016 Order (ECF
No. 45, Objections);
(2) REVERSES IN PART Magistrate Judge Majzoub’s June 30, 2016
Order (ECF No. 43, Order);
(3) GRANTS IN PART Plaintiff’s Motion to Compel (ECF No. 8);
(4) ORDERS Defendant to submit the documents identified in this Order
to the Court for in camera review on or before April 26, 2017;
(5) OVERRULES Plaintiff’s Objections to Magistrate Judge Majzoub’s
January 19, 2017 Order (ECF No. 54, Objections);
(6) AFFIRMS Magistrate Judge Majzoub’s January 19, 2017 Order
(ECF No. 53);
(7) ORDERS Grange to produce for deposition, at a time and date to be
agreed upon between the parties to occur on or before April 26, 2017, a
representative of its Information Technology Department with
knowledge of, and the ability to respond to, the matters set forth in
Section III(B)(2) of this Order; and
(8) DENIES AS MOOT Plaintiff’s motion for status on pending
motions, each of which is resolved in this Opinion and Order.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 30, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
March 30, 2017.
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