Gorman v. State Farm Mutual Automobile Insurance Company et al

Filing 34

ORDER regarding discovery dispute. Signed on October 26, 2016, by Chief District Judge Greg Kays. (Law clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RAHNALD GORMAN,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16-cv-0882-DGK

ORDER REGARDING DISCOVERY DISPUTE
This lawsuit concerns uninsured motorist policy benefits. Plaintiff Rahnald Gorman was
a passenger in a vehicle that was rear-ended by an uninsured motorist. Plaintiff is suing his
insurance company, State Farm Mutual Automobile Insurance Company (“State Farm”), for
breach of contract (Count I) and vexatious refusal to pay (Count II). 1
Pending before the Court is a discovery dispute between Plaintiff and State Farm
concerning the redacted portion of five pages from State Farm’s claim file. The redacted entries
concern State Farm’s adjuster’s monetary evaluation and analysis of Plaintiff’s claims.

The

adjuster made the entries after Plaintiff’s attorney sent a demand letter on March 17, 2016, but
before State Farm denied Plaintiff’s claim, and before Plaintiff filed suit.
The Court has reviewed the parties’ memoranda (Docs. 30, 32) and heard argument from
Plaintiff’s counsel Brett Coppage and State Farm’s counsel Janette Chase Gaddie. The Court
holds State Farm has not carried its burden of establishing that the redacted entries are protected
by the work product privilege, so it shall produce the unredacted entries to Plaintiff.

1

Plaintiff is suing the other Defendants for uninsured motorist benefits as a third-party beneficiary under their
policies. The present discovery dispute, however, does not concern the other Defendants.

Since the Court is hearing this case pursuant to its diversity jurisdiction, federal law
applies to resolve work product privilege claims. Baker v. Gen. Motors Corp., 209 F.3d 1051,
1053 (8th Cir. 2000). As the party seeking to invoke the privilege, State Farm bears the burden
of establishing the elements of the privilege. See In re Grand Jury Subpoena Duces Tecum, 112
F.3d 910, 925 (8th Cir. 1997).
The work product privilege “is distinct from and broader than the attorney-client
privilege.” In re Green Grand Jury Proceedings, 492 F.3d 976, 980 (8th Cir. 2007). The work
product privilege is codified in the federal rules of civil procedure, which state, “Ordinarily, a
party may not discover documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent).”

Fed. R. Civ. P. 26(b)(3)(A)

(emphasis added). This is a fact-based determination, made after considering
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 litigation.
Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987) (emphasis added). If and when
the privilege is established, the materials still may be discovered if: (i) they are otherwise
discoverable; and (ii) the party seeking the materials “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).
With respect to the threshold question here—whether the privilege applies—the Court
finds State Farm has not carried its burden of establishing that the specific redacted entries were
prepared in anticipation of litigation or for trial. In fact, as best the Court can determine from the

2

existing record, the redacted documents appear to be entries made in the regular course of
business for any claim file, and not for purposes of litigation. Accordingly, State Farm shall
produce the unredacted entries to Plaintiff on or before October 28, 2016.
IT IS SO ORDERED.
Date: October 26, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

3

.