McColl v. American Naturopathic Council et al

Filing 107

ORDER granting in part and denying in part 44 Motion to Compel. Please review entire order for complete details. Signed by Magistrate Judge Timothy J. Cavan on 4/6/2018. (HEG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
TINA MCCOLL,

CV 17-40-H-SEH-TJC
Plaintiff,
ORDER

vs.
ALLIED PROFESSIONALS
INSURANCE COMPANY,
Defendant.

The Court held oral argument on plaintiff Tina McColl’s Motion to Compel
Discovery (Doc. 44) and request for attorneys’ fees and costs (Doc. 93) on April 4,
2018. In accordance with the Court’s statements on the record at the hearing, the
Court makes the following ORDER with respect to the unresolved issues identified
in Plaintiff’s Notice of Unresolved Issues (Doc. 81):
1.

Plaintiff’s motion for costs and fees associated with the deposition of

Sara Schroeder, which deposition U.S. District Judge Sam Haddon previously
struck from the record, is GRANTED in part and DENIED in part. Defendant
Allied Professionals Insurance Company (“APIC”) shall pay reasonable costs and
fees associated with the deposition. However, Plaintiff’s requested fees and costs
have not been properly supported.

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Therefore, within 21 days of the date of this Order, Plaintiff’s counsel shall
submit to the Court an affidavit which itemizes and details the costs and fees
claimed, and explains how each cost and fee relates to the deposition. If the Court
cannot determine from Plaintiff’s counsel’s explanation how any of the costs and
fees relate to the deposition, Plaintiff’s counsel’s request for that particular cost or
fee will be denied.
Plaintiff may also include fees and costs associated with post-deposition
motions and briefs which relate directly to the Schroeder deposition. If Plaintiff’s
counsel is claiming that part, but not all, of any particular pleading pertains to the
deposition (e.g., briefing on a motion that relates both to the deposition and also to
other non-deposition matters), counsel may claim only that fraction of the cost or
fee associated with the deposition, and shall explain how such apportionment was
accomplished. If the Court cannot determine from Plaintiff’s counsel’s
explanation how the invoice item was apportioned, Plaintiff’s counsel’s request for
that particular cost or fee will be denied.
APIC may file a response to Plaintiff’s claimed costs and fees no later than
14 days after the date of Plaintiff’s filing.
2.

APIC did not waive claims of privilege relating to the adjuster claim

notes produced by APIC by failing to assert them timely and adequately.

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Accordingly, Plaintiff’s motion to compel production of unredacted claims notes is
DENIED.
3.

APIC represented at the hearing that it has produced all claims notes

without redaction, with the exception of claims notes detailing conversations it had
with defense counsel in the underlying case. The Court finds that such
conversations remain subject to the attorney-client privilege because APIC has not
asserted an advice-of-counsel defense. Accordingly, Plaintiff’s motion to produce
claims notes relating to attorney-client communications is DENIED.
4.

APIC has conceded that there is no attorney-client privilege with

respect to conversations between APIC’s adjuster and the insured in the underlying
case, and it has represented that it has now produced all germane conversations
between its adjuster and insured that previously had been redacted. Accordingly,
this motion is DENIED as moot.
5.

As discussed above in item 3, conversations between APIC and its

defense counsel in the underlying case remain subject to the attorney-client
privilege because APIC has not asserted defense-of-counsel as an affirmative
defense. Accordingly, Plaintiff’s motion to compel the production of any such
communication is DENIED.
6.

Reserve information may have some relevance to APIC’s actual

evaluation of the underlying claim during the claims process, and is therefore

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discoverable. See e.g., Bernstein v. Travelers Ins. Co, 447 F.Supp.2d 1100, 1109
(N.D. Cal. 2006); Flintkote v. General Acc. Assur. Co. of Canada, 2009 WL
1457974, *4 (N.D. Cal May 26, 2009); Dogra v. Liberty Mut. Fire Ins. Co., 2015
WL 5086434, *2 (D. Nev. 2015 August 25, 2015); and Paul Johnson Drywall, Inc.
v. Phoenix Ins. Co., 2014 WL 1764126, *3 (D. Ariz. May 5, 2014). Accordingly,
Plaintiff’s motion to compel the production of reserve information is GRANTED.
The Court takes no position at this time as to whether any reserve information
ultimately may be admissible at trial.
The Court further ORDERS that Plaintiff’s request for sanctions, over and
above fees and costs directly attributable to Sara Schroeder’s deposition as
described above in item 1, is DENIED. While the Court has ruled in Plaintiff’s
favor on some – though not all – of the issues raised in her Motion to Compel
Discovery, the Court finds that APIC’s objections and arguments were
substantially justified, and sanctions therefore are not proper, as explained in Fed.
R. Civ. P. 37(a)(5)(A)(ii) (a court “must not” order sanctions if “the opposing
party’s nondisclosure, response, or objection was substantially justified”).
DATED this 6th day of April, 2018.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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