Amica Mutual Insurance Company v. Momii et al
OPINION AND ORDER granting the Estate of Johnson's 44 Motion to Compel. IT IS FURTHER ORDERED that Amica will respond to, and produce, the requested discovery within 30 days of the date of this Order and supplement any response or production as required under Fed. R. Civ. P. 26(e)(l); IT IS FURTHER ORDERED that Amica will pay the Estate of Johnson's attorney's fees expended in bringing this motion to compel Doc. (44); 9. IT IS FURTHER ORDERED that the Estate of Johnson will fi le a financial affidavit and itemized bill of fees and costs expended in bringing this motion to compel within 14 days of the date of this Order. IT IS FURTHER ORDERED that Amica has 7 days from the date the Estate of Johnson files its financial affidavit to file objections to the attorney's fees and costs. Signed by Judge Susan P. Watters on 10/13/2016. (EMH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
OCT 13 2016
Clerk, U.S. District Court
District Of Montana
AMICA MUTUAL INSURANCE
OPINION AND ORDER
STEVEN T. MOMII, THE EST ATE
OF JEANETTE FAUN WONG,
LEIGH MOMII, ROBIN MOMII, THE
ESTATE OF WESLEY JOHNSON,
JUSTIN FOSTER, AND NATIONAL
Defendant Estate of Wesley Johnson ("Estate of Johnson") moves the Court
for an order compelling Plaintiff Amica Mutual Insurance Company ("Amica") to
answer discovery requests. (Doc. 44). Johnson also requests attorney's fees
expended to bring the motion. (Doc. 45 at 8). For the reasons discussed below,
Johnson's Motion to Compel and for attorney's fees is GRANTED.
On July 6, 2015, Steven Momii, his wife Jeanette Faun Wong, and their
daughters, Leigh Momii and Robin Momii, were in a car accident with Wesley
Johnson and Justin Foster. (Doc. 24 at 3). Everyone in the crash suffered injuries;
Johnson and Wong suffered fatal injuries. Steven Momii admitted liability for
causing the accident. (Doc. 24 at 3). Amica covered Steven Momii with a
personal auto policy and a personal umbrella liability policy at the time of the
crash. The vehicle driven by Steven Momii was a rental insured by National
Casualty Company. (Doc. 24 at 3-4).
Amica filed the instant action as an interpleader under Fed. R. Civ. P. 22.
Amica acknowledged that its policy limits of at least $4.5 million may not be
sufficient to resolve all of the claims arising from the crash. Amica requested the
Court apportion the policy proceeds among the several Defendants.
The Estate of Johnson issued discovery requests on May 10, 2016. The
relevant discovery requests, and Amica's responses, are as follows:
INTERROGATORY NO. 2: List in detail any and all investigations
conducted by you or on your behalf, including your agents into the
facts and circumstances surrounding the wreck that occurred on July
6, 2015, and which forms the basis of this lawsuit. Please identify
each and every individual conducting such an investigation by name,
occupation and employer, your affiliation with each identified
individual and a concise summary of the facts given to any such
investigator(s) upon which to base their investigation.
ANSWER: Interrogatory No.2 is objected to on the grounds and for
the reason that said Interrogatory seeks infonnation which is deemed
work product, and is not subject to discovery pursuant to Rule
REQUEST FOR PRODUCTION N0.1: Produce any and all reports
or documentations obtained by you that resulted from any
investigation identified in the immediately preceding interrogatory.
RESPONSE: Request for Production No. 2(sic) is objected to on the
grounds and for the reason that said discovery request seeks
infonnation which is deemed work product and is not subject to
discovery pursuant to Rule 26(b)(3)(A) Fed.R.Civ.P.
REQUEST FOR PRODUCTION NO. 3: Produce any and all copies
of payments made to the individuals identified in the fonnation of
your answer to the immediately preceding interrogatory.
RESPONSE: Request for Production No.3 is objected to on the
grounds and for the reason that said discovery request seeks work
product not subject to discovery pursuant to Rule 26(b)(3)(A)
REQUEST FOR PRODUCTION N0.4: Produce all demands made
by Justin Foster, Leigh Momii, Robin Momii, and the Estate of
Jeannette Wong sent to Amica.
RESPONSE: Request for Production No.4 is objected to on the
grounds and for the reason that said discovery request seeks work
product not subject to discovery pursuant to Rule 26(b)(3)(A)
REQUEST FOR PRODUCTION N0.9: Please produce emails and
correspondence Amica and its counsel, Lyman (Bill) Bennett, III, had
1. Geoffrey Keller
2. Ryan Gustafson
3. Carey Matovich
4. Guy Rogers
5. Jon Wilson
6. Kevin Funyak
7. Jalie Meinecke
Paralegals and legal secretaries from:
1. Brown Law Firm
2. Keller and Matovich Law Firm
3. Stacey, Funyak, Kautz Law Firm.
RESPONSE: Request for Production No. 9 is objected to on the
grounds and for the reason that said discovery requests seeks
discovery of work product, not subject to discovery pursuant to the
provisions of Rule 26 (b)(3)(A).
To date, Amica has not provided the Estate of Johnson with a privilege log
identifying the documents or information withheld and has not explained why the
documents or information are protected under the work-product doctrine. Prior to
filing this motion to compel, the Estate of Johnson sent Amica detailed
correspondence explaining the deficiencies in Amica's discovery responses.
Amica did not respond. (Doc. 45). As a result, this Court issued an Order giving
the Estate of Johnson leave to file a motion to compel to resolve the dispute. (Doc.
A party may move for an order compelling an answer, designation,
production, or inspection if a party fails to answer interrogatories submitted under
Rule 33 or fails to produce documents requested under Rule 34. Fed. R. Civ. P.
37(a)(3)(B)(iii-iv). If the motion is granted, the court must, after giving an
opportunity to be heard, require the party whose conduct necessitated the motion to
pay the movant's reasonable expenses incurred in making the motion, including
attorney's fees. Fed. R. Civ. P. 37(a)(5)(A). The court cannot order payment of
reasonable expenses ifthe opposing party's objection was substantially justified or
other circumstances make an award of expenses unjust. Fed. R. Civ. P.
An interrogatory may relate to any matter that may be inquired into under
Rule 26(b). Fed. R. Civ. P. 33(a)(2). Likewise, a party may request another party
to produce material within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). The
scope of Rule 26(b) is as follows:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in
the action, the amount of controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(l). Rule 26(b)'s broad scope of permissible discovery is
limited by, among other things, the attorney work product doctrine. Fed. R. Civ. P.
26(b)(3). To qualify for work-product protection, documents must (1) be
"prepared in anticipation of litigation or for trial" and (2) be prepared "by or for
another party or its representative." In re Grand Jury Subpoena, Mark Torf/Torf
Envtl. Mgmt., 357 F.3d 900, 907 (9th Cir. 2004) (quoting Fed. R. Civ. P. 26(b)(3)).
A party that withholds otherwise discoverable information under the work-product
doctrine must (1) "expressly make the claim"; and (2) "describe the nature of the
documents, communications, or tangible things not produced or disclosed-and do
so in a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A)(i-ii).
Failure to follow Rule 26(b)(5)'s requirements may result in waiver of the
privilege. BNSF v. U.S. Dist. Ct. for Dist. ofMont., 408 F.3d 1142, 1149 (9th Cir.
2005). To determine waiver, a district court makes a case-by-case determination,
taking into account the following factors:
the degree to which the objection or assertion of privilege enables the
litigant seeking discovery and the court to evaluate whether each of
the withheld documents is privileged (where providing particulars
typically contained in a privilege log is presumptively sufficient and
boilerplate objections are presumptively insufficient); the timeliness
of the objection and accompanying information about the withheld
documents (where service within 30 days, as a default guideline, is
sufficient); the magnitude of the document production; and other
particular circumstances of the litigation that make responding to
discovery unusually easy or unusually hard. These factors should be
applied in the context of a holistic reasonableness analysis, intended
to forestall needless waste of time and resources, as well as tactical
manipulation of the rules and the discovery process.
BNSF, 408 F.3d at 1149.
Amica waived its work-product objection because it did not provide a
privilege log and has not otherwise identified the information in its
possession that is protected work-product or stated the reason the
information is protected work-product.
Before the Court conducts the waiver analysis, it addresses Amica's
argument that the requested material is outside the scope of Rule 26(b ). First,
Amica raises this objection for the first time in its brief. Amica did not object to
the material on relevance grounds in its responses to the Estate of Johnson's
discovery requests. (Doc. 45-1 ). Second, given that the question in this action is
how the available coverage will be apportioned amongst the several injured parties,
and the myriad of issues that question presents, the Court finds the Estate of
Johnson's discovery requests detailed in its motion to compel are within Rule
26(b)'s broad scope. Absent a valid claim of privilege, Amica was required to
disclose the material.
Turning to the waiver analysis, Amica's boilerplate objections were enough
to preserve its claim of work-product privilege-for a time. However, the
boilerplate objections became deficient in the five months that have elapsed
without Amica offering any substantive support for the objections. The BNSF
factors all weigh against Amica. The boilerplate objections provide neither the
Court nor the Estate of Johnson any way of evaluating Amica's work-product
objections. Amica has not timely supplied any accompanying information in the
five months since it made the boilerplate objections. None of the Estate of
Johnson's requests appear unduly burdensome. Therefore, Amica has waived its
work-product objections to the requested material. The lone exception is the
communications between Amica and the Brown Law Firm, which Amica argues in
its brief are protected as work-product because Amica hired Brown Law Firm to
defend its insured, Steven Momii, in the underlying suit. Although Amica's
argument is untimely, it provides the Court with a satisfactory explanation of the
work-product doctrine's protection of those particular communications.
Amica must pay the Estate of Johnson's attorney's fees expended to
bring the motion to compel because Amica's objections were not
Amica offers no argument that its objections were substantially justified or
that an award of attorney's fees would be unjust. Because the Court has concluded
the requested material was within Rule 26(b)'s scope, and that Amica waived its
work-product objections to the requested material, the Court orders Amica must
pay the Estate of Johnson's attorney's fees expended to bring this motion to
For the reasons set forth above, the Estate of Johnson's Motion to Compel
(Doc. 44) is GRANTED.
IT IS FURTHER ORDERED that Amica will respond to, and produce, the
requested discovery within 30 days of the date of this Order and supplement any
response or production as required under Fed. R. Civ. P. 26(e)(l);
IT IS FURTHER ORDERED that Amica will pay the Estate of Johnson's
attorney's fees expended in bringing this motion to compel (Doc. 44);
IT IS FURTHER ORDERED that the Estate of Johnson will file a financial
affidavit and itemized bill of fees and costs expended in bringing this motion to
compel within 14 days of the date of this Order.
IT IS FURTHER ORDERED that Amica has 7 days from the date the Estate
of Johnson files its financial affidavit to file objections to the attorney's fees and
DATED this 13th day of October, 2016.
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SUSAN P. WATTERS
United States District Judge
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