Lloyd's Acceptance Corp. v. Affiliated FM Insurance Company
MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that the motion of plaintiffs Lloyd's Acceptance Corp. d/b/a Lloyd's Development Co. and Affordable Communities LP to compel production of documents (Doc. 120 ) is sustained in part, and otherwise denied, in that all the disputed documents shall be produced to plaintiffs not later than April 30, 2012, except: (1) paragraph 2, sentence 2, and paragraph 3, sentence 1 of the July 14, 2004 email, described above as (a), which shall be redacted from the document; the balance of the document shall be produced; and (2) the December 10, 2004 email, described above as (g), which is protected from production in its entirety. Signed by Magistrate Judge David D. Noce on 04/23/2012; (DJO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LLOYD’S ACCEPTANCE CORP., d/b/a
LLOYD’S DEVELOPMENT CO., et al.,
AFFILIATED FM INSURANCE COMPANY,
No. 4:05 CV 1934 DDN
MEMORANDUM AND ORDER
This action is before the court on the motion of plaintiffs Lloyd’s
Acceptance Corp. d/b/a Lloyd’s Development Co. and Affordable Communities
LP to compel production of documents (Doc. 120).
On March 1, 2012, the court heard oral argument on the motion and
received the subject documents for in camera review.
The court has also
received Affiliated’s revised privilege log (Doc. 121-2) and a complete
transcript of Michael Smith’s deposition testimony.
In their motion to compel, Lloyd’s and Affordable (collectively
Affiliated’s revised privilege log:
July 14, 2004 e-mail from Michael Smith1 to Mark Romman,2
Craig Bern,3 and Jonathan Mishara;4
October 6, 2004 e-mail from Craig Bern to Michael Smith
and Mark Romman;
October 6, 2004 e-mail from Michael Smith and Mark
Romman to Craig Bern, Michael Smith, and Mark Romman;
Michael Smith is Affiliated’s general adjuster in St. Louis and the
primary adjuster assigned to plaintiffs’ claim.
Mark Romman is Affiliated’s branch claims manager in Seattle.
Craig Bern is Affiliated’s senior general adjuster in Dallas.
Jonathan Mishara is Affiliated’s in-house counsel.
October 8, 2004 e-mail from Michael Smith to Randall
October 25, 2004 e-mail from Michael Smith to Craig
Bern; this e-mail ends a string of e-mails between Barry
Cohen,6 Michael Smith, Larry Watson,7 and an unidentified
recipient;8 this e-mail also includes an attached draft
November 8, 2004 e-mail from Craig Bern to Andrew
Scanlon9 and Michael Smith; this e-mail ends a string of
e-mails attached to and including e-mail (e), listed
above; this e-mail also includes an attached draft
December 10, 2004 e-mail from Andrew Scanlon to Michael
Smith, Craig Bern, and Mark Romman; this e-mail was a
response to and includes a December 10, 2004 e-mail from
Michael Smith to Andrew Scanlon, Craig Bern, and Mark
Romman; this e-mail also includes an attached draft
March 10, 2005 e-mail from Mark Romman to Michael Smith
and Craig Bern; this e-mail includes an attached draft
March 21, 2005 e-mail from Craig Bern to Michael Smith
and Mark Romman; this e-mail was a response to and
includes e-mail (h), listed above; this e-mail also
includes an attached draft document.
(Docs. 120, 121.)
At the March 1, 2012 hearing, Affiliated agreed to disclose e-mails
(b)-(d), with the understanding that disclosure would not be construed
as a waiver of the possible protections of the work product doctrine and
Randall Kincaid is an employee of Affiliated’s re-insurer.
Barry Cohen is the president of Lloyd’s.
Larry Watson is the Deputy Chief of the Elevator Safety Unit of the
State Fire Marshal’s Office.
The other recipient is identified only by an e-mail address, which
suggests that he is a member of another insurance company.
Andrew Scanlon is Affiliated’s in-house counsel.
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the attorney-client privilege as to the remaining e-mails. Thus, e-mails
(a) and (e)-(i) remain in dispute.
Affiliated argues that e-mails (a) and (e)-(i) are shielded by the
work product doctrine and that e-mails (a), (f), and (g) are protected
by the attorney-client privilege.
(Docs. 121-2, 125.)
that neither the work product doctrine nor the attorney-client privilege
(Docs. 120, 121, 127.)
In May, 2004, Affiliated’s primary claims adjuster, Michael Smith,
received notice of Lloyd’s claim.
(Doc. 125-1 at ¶ 3.)
On June 11,
2004, Smith inspected the subject property, had discussions with the
president of Lloyd’s, Barry Cohen, and received a copy of a repair
(Id. at ¶ 4; Doc. 125-2.)
On June 28, 2004, Smith wrote a letter to Cohen, explaining that
resultant of the long[-]term red rouge condition or resultant of faulty
workmanship would be considered a separate occurrence of loss under [the
insurance] policy and subject to a separate $10,000 deductible.”
125-1 at ¶ 5; 125-2.)
Thereafter, Cohen and Smith had a telephone conversation in which
breakdowns were separate occurrences, each subject to a deductible.
125-1 at ¶ 6.)
Cohen also stated that he was considering hiring
outside counsel to assist him in making his claim.
On July 14, 2004, in a telephone conversation with Smith, Cohen
confirmed that he had hired outside counsel to assist him in making his
(Id. at ¶ 7.)
Jonathan Mishara regarding the coverage dispute and Lloyd’s hiring of
Later that day, Smith sent an e-mail to two
other claims adjusters, Mark Romman and Craig Bern, with Mishara “CC’d”
on the e-mail, in which Smith summarized his request for the advice of
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On September 30, 2004, Smith received a letter from Cohen in which
Cohen argued that there was only one loss caused by prolonged exposure
to red rouge and thus only one deductible applied.
(Id. at ¶ 9; Doc.
Cohen enclosed an updated repair report estimating the loss at
$980,000, and demanded payment of the claim in full.
(Doc. 125-1 at ¶ 9;
On October 25 2004, Smith e-mailed Bern to discuss how best to
respond to Cohen’s argument for coverage.
(Doc. 125-1 at ¶ 10.)
November 8, 2004, Smith and Bern e-mailed Affiliated’s in-house counsel
Andrew Scanlon for further related discussions.
On November 9, 2004, Smith received a letter from Lloyd’s outside
counsel, Joseph Blanner.
(Id. at ¶ 11; Doc. 125-4.)
In the letter,
Blanner challenged Affiliated’s coverage position, requested immediate
payment of the approximately $980,000, and threatened litigation if
Affiliated did not pay.
(Doc. 125-1 at ¶ 11; Doc. 125-4.)
On December 10, 2004, Smith e-mailed Scanlon, Bern, and Romman
requesting advice on how best to communicate Affiliated’s coverage
position to Lloyd’s.
(Doc. 125-1 at ¶ 12.)
determination letter officially denying Lloyd’s claim.
“resulting loss” as required by the policy.
(Id. at ¶ 13;
Specifically, Affiliated stated that the losses were not
challenging the denial of coverage.
(Doc. 125-1 at ¶ 14; Doc. 125-6.)
Blanner wrote that he was directed “to provide [Affiliated] with one
final opportunity to make payment” and gave Affiliated ten days to make
the payment, after which time Lloyd’s would “pursue all legal and
equitable remedies available to collect the amount due.”
In February, 2005, Cohen, Romman, and Smith exchanged letters and
Neither the letters and e-mails themselves nor their contents are
included in the record. The letters and e-mails are referenced, however,
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On March 2, 2005, Cohen wrote Romman a letter stating that “a
settlement conference [was] necessary to facilitate a resolution of [the]
claim” and requesting that Romman, Affiliated’s experts, and Affiliated’s
legal counsel attend the conference.
On March 10, 2005, Romman e-mailed Smith and Bern to discuss how
best to respond to Cohen’s request for a settlement conference.
125-1 at ¶ 15.)
the same purpose.
On March 25, 2005, Bern e-mailed Smith and Romman for
On June 24, 2005, Smith wrote Cohen a letter to confirm receipt of
letters sent by Cohen on June 15 and June 22, 2005.
the letter, Smith also explained that, in a previous telephone message,
he had “indicated that a portion of the claimed costs are recoverable.”
On August 11, 2005, Smith wrote a letter to Cohen stating that
Affiliated had “completed [its] review of [Cohen’s] 14 July 2005 request
for an advance payment of $948,630.42.”
(Doc. 125-1 at ¶ 16; Doc. 127-
In the letter, Smith stated:
Until my letter of 10 December 2004, we had not taken a
position regarding coverage, much less acknowledged coverage.
Prior to that time, we made clear that we were conducting an
investigation in order to make our coverage determination. In
my 10 December 2004 letter, we unequivocally denied coverage
based upon multiple grounds . . . .
At the end of the letter, Smith offered to issue a final
payment of $12,335.88 as an accommodation for recoverable damages owed.
(Doc. 125-1 at ¶ 16; Doc. 127-3.)
Work Product Doctrine
Federal law governs the application of the work product doctrine in
Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir.
Under Federal Rule of Civil Procedure 26, a party may not
ordinarily discover documents prepared in anticipation of litigation by
an opposing party unless the party seeking discovery has a substantial
in Cohen’s March 2, 2005 letter to Romman.
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need for the materials and cannot, without undue hardship, obtain the
substantial equivalent of the materials by other means.11
Civ. P. 26(b)(3).
Id.; Fed. R.
The party seeking protection under the work product
doctrine bears the burden of establishing that the documents were
prepared in anticipation of litigation.
PepsiCo, Inc. v. Baird, Kurtz
& Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002).
If the doctrine is
found to apply, the party seeking discovery bears the burden of showing
a substantial need for the documents and that it cannot otherwise obtain
the substantial equivalent of the materials without undue hardship. Id.;
Baker, 209 F.3d at 1054.
Anticipation of Litigation
Lloyd’s argues that the December 10, 2004 denial was only a
request for additional information extended the claim consideration
period through August 11, 2005, when Lloyd’s issued a “final” denial of
(Docs. 121, 127.)
Affiliated argues that it “partially”
denied the claim as early as June 28, 2004 and that either this or
Cohen’s hiring of outside counsel on July 14, 2004 marked the beginning
of when the parties became adversarial.
Whether documents were prepared in anticipation of litigation is a
[T]he test should be whether, in light of the nature of the
document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained
because of the prospect of litigation. But the converse of
this is that even though litigation is already in prospect,
there is no work product immunity for documents prepared in
the regular course of business rather than for purposes of
Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987) (citations
Thus, to be entitled to protection, the documents must have
Affiliated does not assert that the e-mails are “opinion work
product,” i.e. counsel’s mental impressions, conclusions, opinions, or
legal theories, which would be entitled to “almost absolute immunity.”
Baker, 209 F.3d at 1054 (discussing the different standards); Fed. R.
Civ. P. 26(b)(3)(B).
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been prepared after a “specific threat” of litigation became “palpable.”
Black v. Pilot Travel Cntrs., LLC, No. CIV. 09-4170-KES, 2011 WL 1828039,
possibility” is insufficient.
Folk v. State Farm Mut. Auto. Ins. Co.,
No. 4:10 CV 574 HEA, 2010 WL 3620477, at *2 n.1 (E.D. Mo. Sept. 9, 2010).
In the insurance context, “[a]n insurer’s decision to decline
coverage is typically the point at which the ordinary course of business
ends and the anticipation of litigation begins.”
Scottrade, Inc. v. The
St. Paul Mercury Ins. Co., No. 4:09 CV 1855 SNLJ, 2011 WL 572455, at *5
(E.D. Mo. Feb. 15, 2011).
This is not a “hard line approach,” however,
as the “unique factual context of the given problem” varies among cases.
Med. Protective Co. v. Bubenik, No. 4:06 CV 1639 ERW, 2007 WL 3026939,
at *3 (E.D. Mo. Oct. 15, 2007).
The record is clear that the parties became adversarial no later
than December 10, 2004, when Affiliated officially denied the claim.
As Smith explained in his August 11, 2005 letter, prior
to December 10, 2004, Affiliated “had not taken a position regarding
coverage,” but on December 10, 2004, Affiliated “unequivocally denied
coverage based upon multiple grounds.”
The parties’ actions prior to December 10, 2004, however, indicate
that the parties became adversarial even before the official denial.
On July 14, 2004, Cohen informed Smith that he had hired outside
counsel, Joseph Blanner, to assist Lloyd’s in asserting its claim. (Doc.
125-1 at ¶¶ 6, 7.)
The court’s in camera review confirmed that Smith
wrote the July 14, 2004 e-mail to Romman, Bern, and Mishara in response
to Cohen’s hiring of outside counsel.
The firmness of Cohen’s intent to
litigate coverage was later reflected in Blanner’s November 9, 2004
letter, which disputed coverage and threatened litigation. (Doc. 125-4);
see Scottrade, 2011 WL 572455, at *5 (noting that the plaintiff had hired
outside counsel prior to the denial of the insurance claim); Bubenik,
2007 WL 3026939, at *4 (“While the retention of outside counsel is not
dispositive of when litigation is anticipated, the Court finds that in
the case at bar it indicates [the plaintiff]’s intention to challenge
coverage, and the beginning of an adversary relationship between the
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In his sworn declaration, Smith testified that “from on or about
July 14, 2004 forward, [he] held the belief that [Lloyd’s] was more
likely than not to litigate its dispute over Affiliated’s position.”12
(Doc. 125-1 at ¶ 8); see State Auto Prop. & Cas. Ins. Co. v. PW Shoe
Lofts, LP, No. 4:10 CV 1951 AGF, 2011 WL 2174856, at *2-3 (E.D. Mo. June
3, 2011) (finding that the expert was retained in anticipation of
litigation where, even thought the claim had not yet been denied, the
insurer was aware of the potential of litigation).
Moreover, although the claim was not formally denied until December
10, 2004, Affiliated communicated its coverage position as early as June
(Doc. 125-1 at ¶ 5; 125-2); compared to, e.g., Martin v.
Safeco Ins. Co. of Am., No. 4:10 CV 1027 AGF, 2010 WL 4278856, at *1
(E.D. Mo. Oct. 25, 2010) (noting that the insurer “ha[d] not argued that
at the time [the insured] first made a claim against [it], [it] intended
to deny the claim”); McConnell v. Farmers Ins. Co., Inc., No. 07-4180-CVC-NKL, 2008 WL 510392, at *2 (W.D. Mo. Feb. 25, 2008) (same).
Affiliated’s June 28, 2004 coverage position that led Cohen to hire
outside counsel, which in turn led Smith to contact Affiliated’s in-house
E.g., PW Shoe Lofts, 2011 WL 2174856, at *2-3.
Based on the foregoing, the court concludes that each of the e-mails
was created in anticipation of litigation rather than in the ordinary
course of business.
Thus, Lloyd’s must show a substantial need for the
e-mails and an inability to obtain their substantial equivalent without
undue hardship in order to compel their production.
Substantial Need and Undue Hardship
Lloyd’s argues that it has a substantial need for the e-mails
because the e-mails reveal Affiliated’s knowledge and intentions during
Although Smith testified in his deposition that he did not recall
when the claim became “contentious,” this does not necessarily undermine
his declaration. To the extent Smith exhibited greater knowledge of the
facts in his declaration than in his deposition, Smith may have had a
more refreshed memory of the relevant timeline during his declaration
than during his deposition.
In any event, as discussed above, the
parties’ communications and actions also reflect their adversarial
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the investigation of the claim, which Lloyd’s argues are directly at
issue in Count II (vexatious refusal to pay).13
Lloyd’s argues that it
cannot obtain the substantial equivalent of the e-mails because the emails are the only documents that “demonstrate the contemporaneous
thoughts and positions of Affiliated.”
(Docs. 121, 127.)
argues that Lloyd’s can obtain the substantial equivalent of the e-mails
without undue hardship through depositions of Smith and Romman, and that
Lloyd’s already possesses all letters communicating Affiliated’s coverage
decisions and reasoning.
Often, “there is a substantial need for discovery of a claims file
as it relates to a vexatious refusal to pay claim.”
McConnell, 2008 WL
510392, at *3; accord Logan v. Commercial Union Ins. Co., 96 F.3d 971,
977 (7th Cir. 1996) (recognizing that “allowing a plaintiff to overcome
an insurer’s work product privilege may be particularly appropriate in
an action for bad faith, in light of the insurer’s virtual monopoly over
the evidence required to support an action”); Henderlong v. Allstate Ins.
Co., Civil Action No. 08-cv-01377-CMA-MEH, 2009 WL 82493, at *2 (D. Colo.
Jan. 13, 2009) (“The case for discoverability is much stronger when a bad
faith claim is alleged and when the parties involved in the lawsuit are
insured and insurer.”).
The substantial need arises because “the
strategy, mental impressions[,] and opinion of the insurer’s agents
concerning the handling of the claim are directly at issue.”
v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992).
Pleading a vexatious refusal to pay claim does not, ipso facto,
create a substantial need for an insurer’s internal documents.
96 F.3d at 977 (“[A] mere allegation of bad faith is insufficient to
overcome the work product privilege.”).
Instead, “[t]he plaintiff must
demonstrate some likelihood or probability that the documents sought may
contain evidence of bad faith.” Id.
The required showing is “not a high
hurdle,” given that the plaintiff can only speculate as to the documents’
Where, as here, an insured raises a bad faith claim against an
insurer, by an in camera examination of the documents the court can
See (Doc. 73 at ¶¶ 38-46.)
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evaluate the possibility that the documents contain evidence of bad
Id.; Henderlong, 2009 WL 82493, at *2; Bishelli v. State Farm
Mut. Auto. Ins. Co., Civil Action No. 07-cv-00385-WYD-MEH, 2008 WL
280850, at *2 (D. Colo. Jan. 31, 2008).
Affiliated does not argue that the e-mails are not relevant to any
Regardless, after conducting an in camera review, the court determines
that the e-mails may be relevant to Lloyd’s vexatious refusal to pay
See Logan, 96 F.3d at 977 (noting that there need be only “the
possibility, not the certainty” that the documents contain evidence of
bad faith in order for an insured to have a substantial need for them in
establishing a vexatious refusal to pay claim); accord Henderlong, 2009
WL 82493, at *2.
Affiliated argues that Lloyd’s has other means to obtain the
substantial equivalent of these materials, namely, through depositions
of Smith and Romman.
“That [the plaintiff] will have the opportunity to
depose employees of [the defendant] as well as [the defendant]’s agents
does not mean that [the plaintiff] will be able to obtain the substantial
equivalent to the documents by other means.”
Schwarz & Schwarz v.
Certain Underwriters at Lloyd’s, Civil Action No. 6:07cv00042, 2009 WL
1043929, at *3 n.10 (W.D. Va. Apr. 17, 2009) (internal citation omitted).
preparing for, and guiding any such depositions.”
information, particularly as it related to the handling of the claim.
Compare with EPCO Carbondioxide Prods. Inc. v. St. Paul Travelers Ins.
Co., No. 06-1800, 2007 WL 4560363, at *3 (W.D. La. Dec. 21, 2007)
(“[D]iscovery of work product will be denied when the requesting party
can obtain the desired information via deposition.”).
deposition was not the substantial equivalent of the e-mails.
deposition of Romman may yield additional information, Smith, not Romman,
was the primary claims adjuster assigned to the claim, was included in
each of the e-mails, and communicated directly with Cohen regarding
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Moreover, the e-mails may be the best evidence of the claims
adjusters’ mental impressions and opinions from the time surrounding the
denial of the claim.
See St. Paul Reinsurance Co., Ltd. v. Commercial
Fin. Corp., 197 F.R.D. 620, 639 (N.D. Iowa 2000) (ordering disclosure of
materials in an insurer’s claims file despite the potential applicability
of the work product doctrine because “[b]oth the timing of, and the
determination of a basis for, the denial of coverage are essential facts
in a first-party bad faith case”).
Therefore, because the e-mails are relevant to the vexatious refusal
to pay claim and no adequate, substantial equivalent can be obtained
without undue hardship, the work product doctrine does not preclude
disclosure of the e-mails.
Missouri law governs the existence and scope of the attorney-client
privilege in this action.
Fed. R. Evid. 501; Baker, 209 F.3d at 1053.
statutorily codified by the General Assembly.
See Mo. Rev. Stat. §
Generally, unless the privilege is waived, it protects “any
regardless of whether it is made in anticipation of litigation or for
preparation for trial.”
State ex rel. Tillman v. Copeland, 271 S.W.3d
42, 45 (Mo. Ct. App. 2008); accord May Dept. Stores Co. v. Ryan, 699
S.W.2d 134, 136 (Mo. Ct. App. 1985) (“[A]ny professionally oriented
communication between attorney and client is absolutely privileged, in
The statute states:
The following persons shall be incompetent to testify:
* * *
(3) An attorney, concerning any communication made to the
attorney by such attorney’s client in that relation, or such
attorney’s advice thereon, without the consent of such
Mo. Rev. Stat. § 491.060(3).
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the absence of waiver, regardless of the anticipation of litigation.”).
Any such materials are non-discoverable, even if the opposing party can
show a substantial need for the materials and that it would suffer undue
hardship in acquiring their substantial equivalent.
Tillman, 271 S.W.3d
To be protected by the attorney-client privilege, “the communication
must be made in order to secure legal advice.”
among the recipients of a document does not bring the document within the
ambit of the attorney-client privilege; the document must be shared in
Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977)
corporation’s counsel will not make the communication privileged” and
that such communications are “made for independent reasons”); Monsanto
Co. & Monsanto Tech. LLC v. E.I. Du Pont de Nemours & Co., No. 4:09 CV
686 ERW, 2011 WL 4408184, at *2 (E.D. Mo. Sept. 22, 2011) (noting that
the “attorney-client privilege does not cover client communications that
relate only business or technical data, where the client is not sharing
that information in order to solicit legal advice” (citation omitted)).
After conducting an in camera review of the e-mails for which
Affiliated asserted protection by the attorney-client privilege in its
revised privilege log, the court makes the following conclusions:
July 14, 2004 e-mail
Paragraph two, sentence two and paragraph three, sentence one are
conversation with counsel concerning legal advice. The remainder of this
e-mail, however, does not concern legal advice or litigation and is thus
not protected by the attorney-client privilege.
November 8, 2004 e-mail
This document is not protected by the attorney-client privilege,
because it was sent to counsel for the purpose of keeping counsel advised
of the business activities of Affiliated’s adjusters Bern and Smith. The
attorney-client privilege does not attach to a document forwarded to
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See Diversified Indus., 572 F.2d at 609; Monsanto, 2011 WL
4408184, at *2.
December 10, 2004 e-mail
This e-mail is protected in its entirety by the attorney-client
counsel for the purpose of obtaining legal advice.
Acceptance Corp. d/b/a Lloyd’s Development Co. and Affordable Communities
LP to compel production of documents (Doc. 120) is sustained in part, and
otherwise denied, in that all the disputed documents shall be produced
to plaintiffs not later than April 30, 2012, except:
paragraph 2, sentence 2, and paragraph 3, sentence 1 of the July 14,
2004 email, described above as (a), which shall be redacted from the
document; the balance of the document shall be produced; and
the December 10, 2004 email, described above as (g), which is
protected from production in its entirety.
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on April 23, 2012.
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