Jordan et al v. Maxfield & Oberton Holdings, LLC et al

Filing 190

ORDER granting 143 Motion to Compel, as set forth herein. Signed by Magistrate Judge Linda R. Anderson on 10/18/2016. (ACF)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

MEAGHIN JORDAN, Individually;
JONATHAN JORDAN, Individually; and
MEAGHIN AND JONATHAN JORDAN, on
behalf of their minor son, Braylon Jordan
VS.

PLAINTIFF
CIVIL ACTION NO.: 3:15CV821-CWR-LRA

MAXFIELD & OBERTON HOLDINGS,
LLC; CRAIG ZUCKER; GREAT
AMERICAN E & S INSURANCE
COMPANY; INDIAN HARBOUR
INSURANCE COMPANY; MARKEL,
d/b/a Evanston Insurance Company; and
SCOTTSDALE INSURANCE COMPANY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter came before the Court for the limited purpose of determining whether Item
Numbers 43 and 59 on the Scottsdale Privilege Log that was attached to Maxfield & Oberton’s
Motion to Compel [Doc. #143, Exhibit C] are protected by the attorney-client privilege. Those
items are described on the Privilege Log as follows:
43.

Email - Internal discussion of Buckey Ball lawsuits, dated January 9, 2014, from
David Verona to Rodney Ball. Protected as: Attorney-client; irrelevant to notice
issue; irrelevant to Braylon Jordan.

59.

Email - Internal discussion of various notices of occurrence, dated January 7, 2014,
from David Verona to Terry Bolin, Rodney Ball, and Geoffrey Borger. Protected as:
Attorney-client, work product; confidential and/or proprietary information related
to persons not parties to this litigation; irrelevant to notice issue.

On May 18, 2016, the Plaintiffs took a deposition pursuant to Fed. R. Civ. P. 30(b)(6) of

Heather Arias, a Claims Consultant with Defendant Scottsdale Insurance Company. According to
Ms. Arias, Geoffrey Borger was, at that time, a Claims Manager with Scottsdale. Terry Bolin was
an Associate Vice President of Claims for Scottsdale, Rodney Ball was either a Claim Specialist or
a Senior Claim Specialist for Scottsdale, and David Verona was, like Ms. Arias, a Claims Consultant
for Scottsdale. According to Ms. Arias, none of these individuals provided legal advice or counsel
to Scottsdale with respect to coverage for the claims made in this lawsuit. Ms. Arias also testified
that Scottsdale did not rely on advice from attorneys in determining whether there was coverage for
those claims.
In contrast, Scottsdale now argues that the two emails from Verona at issue here are
protected by the attorney-client privilege. “Mr. Verona is an attorney is addition to his role as a
claims consultant, and SIC chose him to make certain legal analyses because, as has been held by
Mississippi courts, attorneys are in the best position to make decisions with potential legal
ramifications.” According to Scottsdale, the emails were generated because the company asked
Verona “to provide an explanation of whether or not there may be legal responsibility on various
Buckyball incidents.” Scottsdale claims that the request “required legal analysis” because Verona,
as an attorney, “had to keep legal ramifications in his mind when making these analyses.”
Jurisdiction in this case is based on diversity, so the existence of an attorney-client privilege
depends on state law. In re Avantel, S.A., 343 F.3d 311, 323 (5th Cir. 2003). In Mississippi, the
privilege is provided by Miss. R. Evid. 502. It protects “any confidential communication made to
facilitate professional legal services to the client.” The burden of proving the existence of the
privilege rests with the party asserting it. United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir.
1985); Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 494-95 (Miss.

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2010). Citing Dunn v. State Farm Fire & Cas. Co., 122 F.R.D. 507, 509-10 (N.D. Miss. 1988),
Scottsdale argues that the privilege applies even if the attorney is asked to do work that is not legal
in nature. “[W]hile in-house accountants or lay investigators could have been employed to
investigate the events in question, neither would have brought to bear the same training, skills and
background necessary to make the professional independent analysis and legal recommendations
sought . . . .” Id. at 509. The privilege extends to communications by and to corporate counsel.
Baptist Health v. BancorpSouth Ins. Services, Inc., 270 F.R.D. 268, 273 (N.D. Miss. 2010).
Maxfield & Oberton, also quoting Dunn, contend that the attorney-client privilege is
construed “no more broadly than is necessary to effectuate its purpose.” 122 F.R.D. at 509. That
purpose is to insure that a client fully informs his attorney of the facts necessary to enable that
attorney “to provide sound legal advice.” Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).
The communications that are protected by the privilege are only those that “are relevant to legal
advice.” Wright v. Life Investors Ins. Co. of America, 2010 WL 481003 at *1 (N.D. Miss. 2010).
As the Mississippi Supreme Court has held, “Services which are strictly business or personal, do not
enjoy the privilege.” Haynes v. Anderson, 597 So. 2d 615, 621 (Miss. 1992). Thus, where an
attorney functions as a mere “scrivener,” such as when preparing a deed, where no legal advice is
required, there is no privilege. Rogers v. State, 266 So. 2d 10, 20 (Miss. 1972).
The application of the attorney-client privilege “is a fact question to be determined in light
of the purpose of the privilege and guided by judicial precedents . . . .” In re Grand Jury Subpoena,
419 F.3d 329, 335 (5th Cir. 2005). In making its determination, the Court has reviewed the two
emails in question, which were submitted for in camera review. In essence, Scottsdale’s defense
in this case is based upon its contention that there is no coverage under the “Second Layer Excess

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Scottsdale Policy” for the Plaintiffs’ claims because a claim was not made and reported within the
applicable policy period of extended reporting period. In asserting that defense, Scottsdale relies
upon the terms of that policy. Having reviewed the emails in question, it appears that Verona was
asked to elaborate on Scottsdale’s position. Ms. Arias testified under oath that Verona did not
provide legal advice on the issue of coverage, nor did Scottsdale rely on legal advice from Verona
in denying coverage. The emails substantiate her testimony.
Under Miss. R. Evid. 502, the attorney-client privilege requires both a lawyer and a client.
In that context, “lawyer” is defined as “a person authorized . . . to practice law in any state or
nation.” A “client” is defined as a “corporation . . . to whom a lawyer renders professional legal
services; or who consults a lawyer with a view to obtaining professional legal services from the
lawyer.” (Emphasis added.) Scottsdale has the burden of proving each of these elements. It is not
clear whether Verona is actually authorized to practice law in the sense of being licensed by a
particular bar. What is clear, however, is that, according to the uncontroverted testimony of
Scottsdale’s employee, Ms. Arias, he was not in the position of rendering legal services to
Scottsdale, nor did Scottsdale consider him to be in that position. For these reasons, and based on
the Court’s in camera review of the emails in question, the Court finds that Scottsdale has not
satisfied its burden of establishing that the attorney-client privilege exists.
IT IS, THEREFORE, ORDERED that the Motion to Compel Discovery [Doc. #143] filed
by Maxfield & Oberton Holdings is hereby granted as to the documents listed as No. 43 and No.
59 is Scottsdale’s Privilege Log, and those documents should be produced on or before November
21, 2016.

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IT IS SO ORDERED, this the 18th day of October, 2016.

/s/Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE

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