Lubritz v. AIG Claims, Inc.

Filing 30

ORDER. The 18 motion for production is DENIED except as outlined, and the requests for sanctions are DENIED. See Order for details/deadlines. Signed by Magistrate Judge Nancy J. Koppe on 4/18/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOEL LUBRITZ,
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Plaintiff(s),
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v.
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AIG CLAIMS, INC.,
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Defendant(s).
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Case No. 2:17-cv-02310-APG-NJK
ORDER
(Docket No. 18)

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Pending before the Court is Plaintiff’s motion for production of unredacted claims notes pursuant

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to Rule 612 of the Federal Rules of Evidence, and for sanctions. Docket No. 18. Defendant filed a

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response in opposition and a counter-request for sanctions, and Plaintiff filed a reply. Docket Nos. 19-

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20. The unredacted claims notes were submitted for the Court’s in camera review.1 A complete copy

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of the deposition transcript at issue was filed. Docket No. 23. A privilege log was filed. Docket No.

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26. The Court held a hearing on the motion on April 16, 2018. Docket No. 29; see also Hearing Rec.

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(4/16/2018) at 2:02-2:30 p.m.2

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Defendant submitted initially a claims file covering AIG001807 through AIG001933. See Docket
No. 22. At the hearing, Defendant’s counsel presented a claims file covering AIG001709 through
AIG001728, and submitted that file to the Court at that time. Plaintiff’s counsel confirmed that the pertinent
redactions cover only those included in AIG001709 through AIG001728. See Hearing Rec. (4/16/2018) at
2:21 p.m. As such, the Court has destroyed the unredacted version of the claims file covering AIG001807
through AIG001933, and INSTRUCTS the Clerk’s Office to retain under seal a copy of the unredacted
version of the claims file covering AIG001709 through AIG001728.
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As a transcript does not currently exist, the Court will cite herein to the hearing recording.

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I.

OVERVIEW

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This is an insurance dispute regarding Plaintiff’s attempt to recover from Defendant for a claim

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under his underinsured motorist policy. See Docket No. 1-1 at ¶¶ 7-12. More specifically, Plaintiff

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alleges that he suffered severe, life-long injuries as a result of a motor vehicle collision and that

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Defendant unreasonably refused to pay the fair value of his claim. See id. Plaintiff brings causes of

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action for breach of contract, bad faith, and violation of Nevada’s Unfair Trade Practices Act. See id.

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at ¶¶ 14-32.

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Timothy McCabe is the claims handler responsible for Plaintiff’s claim that is the subject of this

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litigation. See Docket No. 18 at 2. Defendant has already produced a redacted version of the claims file,

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see id., but redacted parts of the claims notes on the basis of attorney-client privilege and attorney work-

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product protection, see Docket No. 19 at 2. At his deposition, Mr. McCabe testified about using the

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claims file to refresh his recollection prior to testifying:

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Q: You also testified, Mr. McCabe, that you reviewed your file in preparation for your deposition

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today?

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A: Correct.

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Q.: Did that refresh your recollection?

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A.: Somewhat so, yeah.

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Q.: Okay. Did you review the claim notes in preparation for your deposition today?

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A.: Yes.

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Q.: Did reviewing all of the entries in your claim notes refresh your recollection to testify today?

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A.: I would say so, yeah.

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Q.: When did you conduct that review of your file?

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A.: A little bit at defense counsel yesterday and then a little bit more last evening in my hotel

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room.

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Docket No. 23 at 142.

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II.

STANDARDS AND ANALYSIS

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The basic dispute before the Court is that Plaintiff has requested production of the unredacted

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claims notes pursuant to Rule 612 of the Federal Rules of Evidence in light of the above deposition
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testimony, and Defendant contends such production is unwarranted. The parties dispute the standards

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that apply to this analysis. For his part, Plaintiff contends that the review of a document to refresh

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recollection prior to a deposition automatically results in the waiver of any privileges and the required

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production of that document. Docket No. 18 at 5-6.3 Defendant counters that production of such a

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document is only required after the Court conducts a balancing test to determine whether the need for

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disclosure outweighs the policies underlying any privilege or protection of that document. Docket No.

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19 at 6-7. Defendant has the better argument.

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Rule 612 governs the disclosure of writings used to refresh recollection before testifying.4 The

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Court interprets and applies a Federal Rule of Evidence by first looking to the text of the rule itself. See,

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e.g., United States v. Sioux, 362 F.3d 1241, 1245 (9th Cir. 2004). In pertinent part, Rule 612 provides

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as follows:

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(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to
refresh memory:

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(1) while testifying; or
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(2) before testifying, if the court decides that justice requires the party to have those
options.

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(b) Adverse Party’s Options; Deleting Unrelated Matter. . . . [A]n adverse party is entitled
to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it,
and to introduce in evidence any portion that relates to the witness’s testimony. . . .

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The only exception for which Plaintiff accounts is when a court orders a witness to review a
document. See Docket No. 18 at 6 (discussing Laxalt v. McClatchy, 116 F.R.D. 438, 454-55 (D. Nev.
1987)). Hence, Plaintiff’s briefing argues that “the fact that Mr. McCabe voluntarily reviewed the Claims
Notes to refresh recollection necessarily triggers FRE 612 and warrants the production of the Claims Notes.”
Docket No. 20 at 4. Plaintiff’s counsel changed course somewhat at the hearing, asserting that he was not
advocating for a mandatory disclosure rule. Hearing Rec. at 2:22 p.m. The substance of the argument
presented, however, turned almost entirely on the fact that there is some testimony that the claims notes were
reviewed to refresh recollection prior to Mr. McCabe’s testimony. See id. at 2:24 p.m. Such an argument
is tantamount to advocating for a mandatory disclosure rule.
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“The vast majority of cases that have considered the issue have concluded that Rule 612 is
applicable to depositions.” In re Xarelto (Rivaroxaban) Prods. Liability Litig., 314 F.R.D. 397, 401 (E.D.
La. 2016). No argument to the contrary has been presented in relation to the pending motion.
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Fed. R. Evid. 612. The text of Rule 612(a)(2) is clear, disclosure of a document used to refresh

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recollection prior to testifying is only required “if the court decides that justice requires” that disclosure.

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Rather than mandating disclosure, this language renders disclosure to be a discretionary decision of the

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Court. See United States v. Williams, 875 F.2d 846, 854 (11th Cir. 1989); see also Fed. R. Evid. 612,

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Advisory Committee Notes (1974) (the rule “render[s] the production of writings used by a witness to

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refresh his memory before testifying discretionary with the court in the interests of justice”). “[N]othing

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in the Rule [should] be interpreted as barring the assertion of a privilege with respect to writings used

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by a witness to refresh his memory.” In re Rivastigmine Patent Litig., 486 F. Supp. 2d 241, 243

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(S.D.N.Y. 2007) (quoting advisory committee notes). Instead, the inclusion of the interest of justice

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provision incorporates a balancing analysis into determining whether disclosure of the writing is

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required. See, e.g., In re Joint Eastern & Southern Dist. Asbestos Litig., 119 F.R.D. 4, 5 (E.D.N.Y.

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1988). Accordingly, the Court concludes that Rule 612(a)(2) does not mandate the disclosure of

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documents used to refresh a deponent’s recollection prior to testifying. See, e.g., Server Tech., Inc. v.

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Am. Power Conversion Corp., Case No. 3:06-cv-00698-LRH-VPC, 2011 WL 1447620, at *11 (D. Nev.

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Apr. 14, 2011) (Cooke, J.).5

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Having determined that disclosure is a discretionary matter, the Court turns to the analysis used

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to guide that exercise of discretion. The party seeking disclosure bears the burden of showing that

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disclosure is warranted. See, e.g., Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) (“a party must meet

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three conditions before it may obtain documents used by a witness prior to testifying”); Parry v.

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Highlight Indus., Inc., 125 F.R.D. 449, 452 (W.D. Mich. 1989) (production denied where the movant

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failed to show that disclosure was in the interest of justice). There has not been devised a uniform

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mechanism by which courts analyze the interests of justice for purposes of Rule 612 disclosures, and

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different courts have looked to varying factors in conducting that analysis. See Server Technology, 2011

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WL 1447620, at *11. As an overarching matter, however,

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The case law is not uniform. See, e.g., Adidas Am., Inc. v. TRB Acquisitions LLC, ___ F.R.D. ____,
2017 WL 5630038, at *5-7 (D. Or. Nov. 22, 2017) (canvassing competing cases). In rejecting a mandatory
disclosure rule, the Court follows the majority approach. See 28 Wright & Gold, FEDERAL PRACTICE &
PROCEDURE, § 6188 at p. 537 (2012 ed.) (“Most courts now reject the absolute-waiver approach”).
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courts must balance, on a case-by-case basis, the competing interests present: the
objective of full disclosure and the ascertainment of the truth that Rule 612 and the
federal discovery rules reflect, against the interest in maintaining the confidentiality of
protected material.

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United States v. 22.80 Acres of Land, 107 F.R.D. 20, 26 (N.D. Cal. 1985).

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In this case, the Court has reviewed in camera the unredacted version of the claims notes at issue

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and allowed Defendant argument at the hearing regarding any attorney-client privilege and work-product

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protection objections. As an initial matter, the Court notes that Defendant argued in significant part that

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the notes at issue were attorney-client privileged in that they were emails or letters from counsel to

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Defendant. Hearing Rec. at 2:10 - 2:11 p.m.; see also Docket No. 19 at 2, 4. As Plaintiff’s counsel

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correctly argued at the hearing, however, the privilege log identified only work-product protection as

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the basis for redaction, rather than attorney-client privilege. Hearing Rec. at 2:28 p.m.; see also Docket

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No. 26 at 1. The Court does not find this shortcoming sufficient to find an assertion of attorney-client

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privilege waived in this case. Cf. Butler Mfg. Co. v. Americold Corp., 148 F.R.D. 275, 277 (D. Kan.

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1993) (finding deficiency in privilege log not sufficient cause to require disclosure). Instead, the Court

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orders Defendant to provide a supplemental privilege log correctly listing all bases on which it has

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withhold the redacted information. Such supplemental privilege log shall be provided within 14 days

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of this order.

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Turning to the merits of Defendant’s assertion of attorney-client privilege and work-product

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protection, the party asserting such a privilege or protection bears the burden of establishing that it

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applies. See, e.g., In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992). Under Nevada

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law, attorney-client privilege attaches to confidential communications between an attorney and client

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made for the purpose of facilitating the rendition of legal services. Wynn Resorts, Ltd. v. Eighth Judicial

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Dist. Ct., 399 P.3d 334, 341 (Nev. 2017) (en banc) (citing N.R.S. 49.095).6 The attorney-client privilege

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is to be narrowly construed because it impedes the search for the truth. Whitehead v. Nev. Com’n on

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Judicial Discipline, 873 P.2d 946, 968 (Nev. 1994). The work product doctrine protects attorneys’

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In diversity cases, the Court applies state law to attorney-client privilege objections. See Fed. R.
Evid. 501.
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thought processes and legal recommendations. See, e.g., Philips v. C.R. Bard, Inc., 290 F.R.D. 615, 634

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(D. Nev. 2013) (citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)).7 To qualify for protection

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under this doctrine, the documents or information must: (1) be prepared in anticipation of litigation or

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for trial, and (2) be prepared by or for another party or by or for that other party’s representative. United

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States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011).8

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In this case, Defendant’s counsel failed to articulate a basis to find privileged or protected

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roughly half of the redacted entries currently in dispute. Indeed, counsel indicates that she was not

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always entirely sure of the nature of the entries and had taken an overly-inclusive approach to

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withholding information. See, e.g., Hearing Rec. at 2:08 p.m., 2:14 p.m. As such, Defendant shall

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produce in unredacted form the claims notes entries from July 20, 2017 on AIG001713, February 1,

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2017 on AIG001715, December 5, 2016 on AIG001715, July 15, 2016 on AIG001716, and June 17,

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2016 on AIG001716-17. Defendant shall also produce the first portion of the entry on April 26, 2017

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on AIG001714 with redaction only beginning after “I sent the letter on 4/18.” That supplemental

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production shall be provided within 14 days of this order.

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With respect to the remaining entries in dispute, they include predominately counsel’s

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communications of his assessments and impressions of the case transposed into the claim notes. For

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example, the entry from September 6, 2017, provides counsel’s “summary of facts and liability

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assessment” that includes detailed thoughts on several aspects of the case. See AIG001709-12; see also

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Hearing Rec. at 2:06-07 p.m. (explanation from counsel as to the nature of the entry). Such an entry fits

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easily within the bounds of a attorney-client privileged communication and attorney work-product

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protected information. The Court is satisfied that a sufficient basis exists for Defendant’s assertion of

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attorney-client privilege and work-product protection with respect to the redacted information remaining

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in the claims notes.

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Because the work-product doctrine is a procedural immunity rather than an evidentiary privilege,
federal courts apply federal law even when sitting in diversity. Metzler Contr’g Co. v. Stephens, 642 F.
Supp. 2d 1192, 1204 (D. Haw. 2009) (collecting cases).
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A particular document may be subject to both work product protection and attorney-client
privilege. See, e.g., Walker v. County of Contra Costa, 227 F.R.D. 529, 534 (N.D. Cal. 2005).
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A showing has not been made by Plaintiff to counterbalance the need to maintain the

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confidentiality of that privileged and protected information. “The purpose of the rule is . . . to promote

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the search of credibility and memory.” Fed. R. Evid. 612, Advisory Committee Notes (1972). Justice

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may require the production of a document used to refresh recollection to ensure an adequate opportunity

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for cross-examination and impeachment. See, e.g., Rivastigmine, 486 F. Supp. 2d at 243. On the other

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hand, the production of a document is of “little utility for impeachment and cross-examination purposes

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without a showing that the document actually influenced the witness’ testimony.” Sporck, 759 F.2d at

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318. As such, “the party seeking production of any such document must show more than a mere cursory

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review of the document by the witness. ‘A showing must be made that the document actually influenced

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the witness’ testimony.’” Valvoline Instant Oil Change Franch’g v. RFG Oil, Inc., Case No. 12-cv-

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2079-GPC (KSC), 2014 WL 12026073, at *5 (S.D. Cal. May 20, 2014) (quoting Butler, 148 F.R.D. at

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278); see also T&S Enterps., LLC v. Sumitomo Corp. of Am., Case No. 11-cv-1318-GPC (MDD), 2012

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WL 4845544, at *1 (S.D. Cal. Oct. 10, 2012) (“courts have required some evidence that a witness

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actually relied upon documents in giving his testimony or that those documents somehow influenced

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his testimony” (quoting K&S Assocs., Inc. v. Am. Ass’n of Physicists in Med., Case No. 3:09-1108, 2012

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WL 4364087, at *3 (M.D. Tenn. Sept. 21, 2012)); Wentz v. Grubbs, Case No. Civ. 90-661-FR, 1994 WL

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519033, at *2 (D. Or. Sept. 16, 1994) (“the interests of justice do not require that defendant Grubbs

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disclose materials otherwise protected by the attorney/client privilege simply because he reviewed them

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[to refresh his recollection] in preparation for his deposition”). Asking a witness in cursory manner

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about refreshing his recollection by reviewing a writing, without explanation as to the extent or scope

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of the refreshing and the impact on the testimony, is plainly insufficient. See Butler, 148 F.R.D. at 278;

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see also Sporck, 759 F.2d at 318.

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As Defendant notes in its opposition, Docket No. 19 at 7, an insufficient showing has been made

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that Mr. McCabe’s review of the redacted portion of the claims file impacted his testimony. Plaintiff’s

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motion is premised entirely on Mr. McCabe’s testimony that reviewing the claims file “somewhat”

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refreshed his recollection and that he “would say so, yeah” that reviewing “all” of the entries in the

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claims notes refreshed his recollection. Docket No. 18 at 36. The extent of his review was “a little bit.”

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Id. No direct question was posed to Mr. McCabe that he even reviewed the redacted portions of the
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claims notes and whether those particular portions refreshed his recollection in any way. Instead,

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counsel asked indirectly whether “reviewing all of the entries in your claim notes refreshed your

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recollection.” Docket No. 18 at 36. Moreover, no testimony was elicited as to whether the claims notes

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(and the redacted portions of it, in particular) impacted in any way Mr. McCabe’s testimony, and instead

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the record reflects otherwise given the testimony that the review was not extensive. In short, Plaintiff’s

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showing falls well short of establishing that Mr. McCabe’s review of the redacted aspects of the claims

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notes impacted his testimony in any way. As such, disclosure is not warranted.9

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Accordingly, the Court is not persuaded that it is in the interest of justice to disclose the redacted
claims notes that are privileged or protected.
III.

SANCTIONS

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The parties seek sanctions against each other in conjunction with the pending motion. Docket

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No. 18 at 7-8; Docket No. 19 at 7-8. Those requests are premised entirely on Rule 37(a)(5) of the

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Federal Rules of Civil Procedure, which governs awarding expenses upon the resolution of a motion to

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compel discovery brought pursuant to Rule 37(a)(1) of the Federal Rules of Civil Procedure. Plaintiff’s

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instant motion, however, is premised on Rule 612 of the Federal Rules of Evidence, which is “not a rule

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of discovery.” Spork, 759 F.2d at 317. No showing has been made that the sanctions provision in Rule

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37 of the Federal Rules of Civil Procedure applies to the instant motion. Accordingly, the requests for

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sanctions will be denied.10

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While disclosure is allowed to enable cross-examination and impeachment, the Court finds it
notable that Plaintiff does not contend that the examination of Mr. McCabe was impaired by the nondisclosure of the redacted claims notes and Plaintiff has not sought further deposition testimony from Mr.
McCabe upon disclosure of the redacted claims notes. Cf. Valvoline Instant Oil Change Franchising, 2014
WL 12026073, at *6.
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Even were the Court to apply Rule 37, the circumstances in this case do not warrant an award of
expenses to either party.
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IV.

CONCLUSION

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For the reasons discussed above, the motion for production is DENIED except as outlined above,

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and the requests for sanctions are DENIED. As outlined above, a supplemental privilege log and

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supplemental production shall be provided within 14 days of the issuance of this order.

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IT IS SO ORDERED.

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DATED: April 18, 2018

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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