Allstate Insurance Company et al v. Belsky et al

Filing 172

ORDER that Plaintiffs shall produce to Defendants the documents provided to the Court for in camera review no later than 06/07/2017. IT IS FURTHER ORDERED that if either party believes the hearing currently scheduled for 06/08/2017 is still necessary, they shall notify the Court by 06/05/2017. Signed by Magistrate Judge Carl W. Hoffman on 06/01/2017. (Copies have been distributed pursuant to the NEF - KW)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4
5
6
7
8
9
10

ALLSTATE INSURANCE COMPANY, et al,

)
)
Plaintiffs,
)
)
v.
)
)
MARJORIE BELSKY, MD, et al,
)
)
Defendants.
)
)
_______________________________________ )

Case No. 2:15-cv-02265-MMD-CWH

ORDER

Presently before the Court is Plaintiffs’ exhibit A attached to its declaration (ECF No. 132) in

11

support of its response (ECF No. 131) to Defendants’ motion for sanctions (ECF No. 107),

12

submitted on May 1, 2017 for in camera review.

13

Also before the Court is Defendants’ motion for Federal Rule of Civil Procedure 16 Status

14

Conference (ECF No. 156), filed on May 16, 2017. Plaintiffs’ filed a response (ECF No. 166) on

15

May 20, 2017.

16

On May 1, 2017, Plaintiffs delivered to chambers a set of unsolicited documents, for which

17

they requested in camera review. Plaintiffs’ submission included a number of e-mails from Debe

18

Dube, along with a transcript of an examination under oath (EUO) with Mrs. Dube, conducted by

19

Plaintiffs’ attorneys Eron Z. Cannon and Jared P. Green. The EUO was offered in support of

20

Plaintiffs’ response (ECF No. 131) to Defendants’ motion for sanctions (ECF No. 107). Plaintiffs

21

represent that they provided the transcript to the Court to “refute Defendants’ speculative claims of

22

ethical violations during the EUO[,]” (Resp. at 8 (ECF No. 166)), and so that “the Court can fully

23

evaluate efforts by Mr. Cannon and Mr. Green to maintain the highest ethical standards while

24

conducting a proper ex parte interview with Dr. Belsky’s former employee for the purpose of

25

evaluating Allstate’s potential legal claims.” Resp. at 3 (ECF No. 131). Plaintiffs refer to statements

26

made in the EUO throughout their response and supporting declarations to Defendants’ motion for

27

sanctions, describing both the conduct and statements of Ms. Dube as well as attorneys Mr. Cannon

28
1

1

and Mr. Green. Plaintiffs ask for an in camera review of the EUO to ensure that the assertions made

2

in their response and supporting declarations are accurate, and to aid the Court in making its decision

3

in the pending motion for sanctions. Plaintiffs also argue that their use of the EUO in support of

4

their response does not waive their work product privilege, so they do not have to disclose the EUO

5

to Defendants. Resp. at 7-9 (ECF No. 166).

6

However, when Plaintiffs refer to the EUO in their response to the motion for sanctions and

7

their supporting declarations, they put the contents of that document at issue. As both parties note in

8

their briefing, "a litigant cannot use the work product doctrine as both a sword and shield by

9

selectively using the privileged documents to prove a point but then invoking the privilege to prevent

10

an opponent from challenging the assertion." Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695,

11

704 (10th Cir. 1998). It would be inconsistent with the adversarial system to allow Plaintiffs to

12

make arguments that explicitly rely on the EUO without also allowing Defendants access to that

13

material for rebuttal. In order to meaningfully reply to Plaintiffs’ response to the motion for

14

sanctions, Defendants must be able to challenge the truth of the assertions made about the EUO and

15

the validity of the conclusions drawn from those assertions. Plaintiffs argue that by merely

16

submitting the EUO to the Court for in camera review, without disclosing the document to

17

Defendants, they do not waive any privilege. The Court does not disagree. However, Plaintiffs also

18

refer to the EUO extensively in their response to the motion for sanctions, in direct support of their

19

arguments against the motion. They then invoke privilege to prevent any challenge to Plaintiff’s

20

characterization of the EUO in Defendants’ reply. The Court finds this selective use of the EUO is a

21

form of the “sword and shield” strategy described by the Frontier court. The Court will therefore

22

order Plaintiffs to produce the EUO to Defendants.

23

As to the e-mails Plaintiffs provided to the Court for in camera review, Defendants argue

24

they should be disclosed. Plaintiffs do not claim any privilege to them, and take no position on

25

whether they should be disclosed to Defendants. Resp. at 4 (ECF No. 166). Defendants’ request is

26

unopposed, and the Court will therefore order Plaintiffs to produce the e-mails to Defendants.

27

A hearing is currently scheduled on Defendants’ motion for a status conference regarding

28
2

1

these documents (ECF No. 156). In light of the Court’s order above, it appears that the motion is

2

moot. Unless the parties notify the Court of a continued need to hold the hearing by the June 5,

3

2017, the hearing will be terminated.

4
5
6
7
8

IT IS THEREFORE ORDERED that Plaintiffs shall produce to Defendants the documents
provided to the Court for in camera review no later than June 7, 2017.
IT IS FURTHER ORDERED that if either party believes the hearing currently scheduled for
June 8, 2017 is still necessary, they shall notify the Court by June 5, 2017.
DATED: June 1, 2017.

9
10

_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3