Progressive Southeastern Insurance Company v. Arbormax Tree Service, LLC et al
Filing
79
ORDER granting in part and denying in part 32 Motion to Compel. Plaintiff is directed to produce and file documents - Counsel should read the order in its entirety for critical deadlines. The court finds that the award of expenses would be unjust. Each party shall accordingly bear its respective expenses incurred on plaintiff's motion to compel. See Fed. R. Civ. P. 37(a)(5)(A)(iii), (B). Signed by Magistrate Judge James E. Gates on 9/17/2018. (Herrmann, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5: l 6-CV-662-BR
PROGRESSIVE SOUTHEASTERN
INSURANCE COMPANY,
Plaintiff,
V.
ARBORMAX TREE SERVICE, LLC,
ARBORMAX, LLC, TIMOTHY
LAWRENCE ROBBINS , JENNIFER
DAWN ROBBINS , DONALD WAYNE
CAULDER, JR., MICHAEL BARLOW,
Administrator of the Estate of Michelle
Barlow, MICHAEL BARLOW, individually,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER
This case comes before the court on remand from the presiding district judge for
reconsideration of the contested motion (D.E. 32) by defendant Michael Barlow ("Barlow"), both
as administrator of the estate of Michelle Barlow and individually, for an order compelling
production of documents from plaintiff Progressive Southeastern Insurance Company ("plaintiff').
For the reasons set forth below, the motion will be allowed in part and denied in part.
I.
BACKGROUND
This case concerns insurance coverage arising from a motor vehicle accident on 22 March
2016. Barlow 's Mot. to Appeal (D.E. 43) I; Pl. 's Resp . to Mot. to Appeal (D.E. 54) 2. A truck
driven by defendant Donald Wayne Caulder, Jr. , struck a minivan driven by Michelle Barlow,
resulting in her death. Barlow's Mot. to Appeal 1-2; Pl. ' s Resp. to Mot. to Appeal 2; Compl. (D.E.
1)
~
12. Caulder was operating the truck in the course of the business of defendant Timothy
Robbins (Compl. ii 13; Barlow 's Ans. to Compl. (D.E. 19) ii 13) and, Barlow contends, for the
benefit of defendant Arbormax Tree Service, LLC ("ATS") (Barlow's Resp. to Mot. to Appeal 6).
As of the time of the accident, plaintiff had issued a commercial automobile policy to
Timothy Robbins ("Robbins policy"). Barlow's Mot. to Appeal 5; Robbins Policy Deel. Page
(D.E. 44-3). Plaintiff does not dispute coverage of the accident under the Robbins policy. Pl. 's
Resp. to Mot. to Compel 2. Plaintiff had also issued a commercial automobile policy to ATS
("ATS policy"). Compl. ii 14; Ans. to Compl. ii 14; A TS Policy (D.E. 1-1) 1. Plaintiff has denied
coverage of the accident under the ATS policy. Deel. of Emily G. Rice ("Rice Decl.") 1 (D.E. 38l)ii5.
On l April 2016, plaintiff received notice that Barlow had obtained counsel. Pl.' s Resp. to
Mot. to Appeal 2; Rice Deel. ii 6. On 3 May 2016, plaintiff made its denial of coverage under the
ATS policy. Rice Deel. ii 5. On 8 June 2016, Barlow filed a negligence lawsuit in Wake County
Superior Court against Caulder, Timothy Robbins, Jennifer Robbins, ATS , and Arbormax, LLC.
Barlow's Mot. to Appeal 2; Pl. 's Resp . to Mot. to Appeal 3; Comp!. ii 19.
On 8 July 2016, plaintiff filed the instant action for a declaratory judgment providing that
the A TS policy affords no coverage for the accident in issue. Barlow's Mot. to Appeal 2; Pl. 's
Resp. to Mot. to Appeal 3; Comp!. ii 25. Named as defendants were the defendants in the Wake
County case as well as Barlow, both individually and as administrator of the estate of Michelle
Barlow. Comp!. iiii 2-6. Barlow is the only defendant that answered the complaint, and default
was entered against the other defendants (Entry of Default (D .E. 21)).
Pursuant to the scheduling order in this case, which approved plaintiffs and Barlow 's
proposed discovery plan, discovery was to be commenced in time to be completed by 1 March
1
In her declaration, Rice states that she has managed the claim for plaintiff arising from the accident since it was filed
with plaintiff. Rice Deel. iJ 2.
2
2017 . Sched. Ord. (D .E. 27) ii 1. The discovery deadline was later extended to 15 May 2017. 17
Mar. 2017 Ord. (D.E. 31) ii 1.
On 16 December 2016, Barlow sent plaintiff his first request for production of documents
seeking, in relevant part, "The Plaintiffs complete claim file as a result of the vehicular wreck of
March 22, 2016 as set forth in the Complaint filed in this matter." Pl.' s Resp. to First Prod. of
Documents (D.E. 45-1) 2 no . 1. Plaintiff responded as follows:
Plaintiff objects to the request on the basis of attorney-client privilege, work
product privilege, and because it is not likely to lead to the discovery of admissible
evidence. Subject to and without waiving said objections, Plaintiff produces the
attached documents. Pursuant to its objections, Plaintiff is withholding portions of
the claims file that relate only to liability and damages in the underlying tort
litigation.
Id. After further discussions with Barlow, plaintiff sent him a letter asking him to provide a
subpoena for certain documents. 23 Feb. 2017 Ltr. (D.E. 45-6) 1-2. Barlow subsequently provided
two subpoenas to plaintiff. 22 Mar. 2017 Subp. (D .E. 45-7); 4 May 2017 Subp. (D .E. 45-8).
On the last day to conduct discovery, 15 May 2017, Barlow filed the instant motion seeking
an order compelling plaintiff "to fully and completely produce the complete claims files for any
and all claims filed with Plaintiff during any time Plaintiff provided coverage to [ATS] ; Arbormax,
LLC; Timothy Lawrence Robbins, Jennifer Dawn Robbins, and Donald Wayne Caulder, Jr. , from
January 1, 2012 , until today to include all of the records related to the March 22, 2016, crash that
killed Michelle Barlow" as sought by the 4 May 2017 subpoena. Barlow' s Mot. to Compel 1.
Plaintiff filed a memorandum opposing the motion. Pl. 's Resp. to Mot. to Compel (D .E. 38): The
parties had by that point narrowed the documents in dispute to portions of the coverage file on the
ATS policy and of the claims file on the Robbins policy. See, e.g., id. at 3, 5-6. The undersigned
denied plaintiffs motion to compel. 13 June 2017 Ord. (D .E. 42).
3
Barlow appealed the ruling to the presiding district judge and submitted additional
information in support of the motion. Barlow's Mot. to Appeal (D.E. 43). Plaintiff responded in
opposition. Pl. ' s Resp. to Mot. to Appeal (D.E. 54). The presiding district judge vacated the denial
order and remanded the motion to compel to the undersigned for reconsideration in light of
additional facts and argument presented in the appeal. 16 Feb. 2018 Ord. (D.E. 69) 3-4.
The documents whose production remains in dispute are documents in plaintiff's coverage
file on the ATS policy and its claims file on the Robbins policy. Plaintiff produced a privilege log
(D.E. 38-4) for documents it is withholding from the claims file on the Robbins policy, but not for
the documents it is withholding from the coverage file on the ATS policy.
II.
APPLICABLE LEGAL PRINCIPLES
A.
Discovery
The Federal Rules of Civil Procedure enable parties to obtain information by serving
requests for discovery on each other, including requests for production of documents.
See
generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:
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 in 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 be discoverable.
Fed. R. Civ. P. 26(b)(l).
The district court has broad discretion in determining relevance for discovery purposes.
Seaside Farm, Inc. v. United States, 842 F.3d 853 , 860 (4th Cir. 2016); Watson v. Lowcountry Red
Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party resisting discovery bears the burden of
establishing the legitimacy of its objections. Eramo v. Rolling Stone LLC, 314 F.R.D. 205 , 209
4
(W.D. Va. 2016) ("[T]he party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion." (quoting Kinetic Concepts, Inc. v. ConvaTec Inc., 268
F.R.D. 226, 243 (M.D.N.C. 2010))); Brey Corp. v. LQ Mgmt., L.L.C. , No . AW-l l-cv-00718-AW,
2012 WL 3127023 , at *4 (D. Md. 26 Jul. 2012) ("In order to limit the scope of discovery, the
'party resisting discovery bears the burden of showing why [the discovery requests] should not be
granted. " ' (quoting Clere v. GC Servs., L.P., No . 3: 1O-cv-00795 , 2011 WL 2181176, at *2 (S .D.W.
Va. 3 June 2011))).
Rule 34 governs requests for production of documents. A party asserting an objection to a
particular request "must specify the part [to which it objects] and permit inspection of the rest."
Fed. R. Civ. P. 34(b )(2)(C). Objections not timely asserted are waived. See, e.g., Frontier-Kemper
Constructors, Inc., 246 F.R.D. 522, 528 (S .D.W. Va. 2007); Drexel Heritage Furnishings, Inc. v.
Furniture USA, Inc., 200 F.R.D . 255, 258 (M.D.N.C. 2001). The signer of a response to a
production request certifies that "reasonable inquiry" has been made regarding the requested
documents . Fed. R. Civ. P. 26(g)(l).
When a party withholds information on the basis of privilege, including work-product
protection and attorney-client privilege, it must expressly assert the privilege objection in response
to the particular discovery request involved. ld.(b)(5)(A). In addition, the party must serve with
its discovery responses a privilege log in conformance with Rule 26(b)(5)(A). See id.
The
privilege log must "describe the nature of the documents, communications, or tangible things not
produced or disclosed- and do so in a manner that, without revealing information itselfprivileged
or protected, will enable other parties to assess the claim ." Id. (emphasis added). "A party' s
conclusory assertion that a document is privileged is inadequate to meet the burden imposed by
Rule 26(b)(5)(A)." Johnson v. Ford Motor Co., 309 F.R.D. 226, 232 (S.D.W. Va. 28 Aug. 2015)
5
(citing United Stationers Supply Co. v. King, No . 5: 11-CV-00728, 2013 WL 419346, at *2
(E.D.N.C. 1 Feb. 2013)).
Rule 37 allows for the filing of a motion to compel discovery responses. See Fed. R. Civ.
P. 37(a)(3)(B). Rule 37 requires that a motion to compel discovery "include a certification that
the movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action." Jd.(a)(l). Similarly,
Local Civil Rule 7.l(c), E.D.N.C. requires that " [c]ounsel must also certify that there has been a
good faith effort to resolve discovery disputes prior to the filing of any discovery motions. " Local
Civ. R. 7.l(c) (E.D.N .C.); see Jones v. Broadwell, No . 5:10-CT-3223-FL, 2013 WL 1909985, at
* 1 (E.D.N.C. 8 May 2013) (denying motion to compel which did not state that party complied
with Rule 37(a) or Local Civil Rule 7. l(c)).
In addition, Rule 3 7 requires that the moving party be awarded expenses when a motion to
compel discovery is granted, except when the movant filed the motion without attempting in good
faith beforehand to obtain the discovery without court intervention, the opposing party's
opposition to the discovery was substantially justified, or other circumstances would make an
award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A) . lfa motion to compel is denied, expenses
must be awarded to the person opposing the motion, except when the motion was substantially
justified or other circumstances would make an award of expenses unjust. Id. (a)(5)(B). If a motion
to compel is allowed in part and denied in part, the court may apportion the expenses for the
motion. /d.(a)(5)(C).
B.
Attorney-Client Privilege
"[I]n a civil case, state law governs privilege regarding a claim or defense for which state
law supplies the rule of decision." Fed. R. Evid. 501. "A federal court exercising diversity
6
jurisdiction is obligated to apply the substantive law of the state in which it sits, including the
state's choice-of-law rules." Volvo Constr. Equip. N Am., Inc. v. CLM Equip. Co., Inc. , 386 F.3d
581 , 599-600 (4th Cir. 2004). In the instant case, the court must apply the choice oflaw rules of
North Carolina as the forum state. See Homeland Training Ctr. , LLC v. Summit Point Auto.
Research Ctr. , 594 F.3d 285, 290 (4th Cir. 2010).
Generally, under North Carolina choice oflaw rules, "an insurance contract is governed by
the law of the state in which the policy is delivered. " Amerisure Mut. Ins. Co. v. Superior Cons tr.
Corp., No. 3:07-cv-00276-W, 2008 WL 3842958, at *2 (W.D.N.C. 15 Aug. 2008) (citing Roomy
v. Allstate Ins. Co. , 256 N.C. 318, 123 S.E.2d 817 ( 1962)). However, a choice-of-law provision
in a contract may overcome the general rule. Volvo Constr. Equip. N Am. , Inc., 386 F.3d at 601
(citing Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App. 626, 631 , 518 S.E. 2d 205, 209 (1999)).
The parties do not address which state's law governs the insurance contracts in issue. In
the case of the ATS policy, it states, "Any disputes as to the coverages provided or the provisions
of this policy shall be governed by the law of the state listed in your application as your business
location." ATS Policy (D.E. 1-1) 31. Further, it is undisputed that ATS is located in North
Carolina. Compl.
~
2; Barlow 's Ans. to Compl.
~
2. Accordingly, to the extent the court has
considered the merits of plaintiffs claim of attorney-client privilege with respect to the coverage
file on the ATS policy, it has applied the substantive law of North Carolina.
The court does not have a copy of the Robbins policy (other than the declaration page).
The parties appear to agree, however, that Robbins is a citizen and resident of North Carolina.
Compl.
~
3; Barlow's Ans. to Compl.
~
3. The court therefore deems the law of North Carolina to
apply to claims of attorney-client privilege relating to that policy as well.
Under North Carolina law, the attorney-client privilege exists if:
7
(1) the relation of attorney and client existed at the time the communication was
made, (2) the communication was made in confidence, (3) the communication
relates to a matter about which the attorney is being professionally consulted, (4)
the communication was made in the course of giving or seeking legal advice for a
proper purpose although litigation need not be contemplated and (5) the client has
not waived the privilege.
Friday Invs., LLC v. Bally Total Fitness of the Mid-Atlantic, Inc. , 370 N.C. 235 , 240, 805
S.E. 2d 664, 669 (2017) (quoting State v. Murvin , 304 N.C. 523 , 531 , 284 S.E. 2d 289, 294
(198 l )). "The rationale for having the attorney-client privilege is based upon the belief
that only 'full and frank' communications between attorney and client allow the attorney
to provide the best counsel to his client." In Re Miller, 357 N.C. 316, 329, 584 S.E. 2d
772, 782 (2003) (quoting Upjohn Co. v. United States, 449 U.S. 383 , 389 (1981)). The
burden is on the party asserting the privilege to demonstrate that it is applicable. Id. at 328,
584 S.E. 2d at 782. If a party demonstrates that the attorney-client privilege applies, all
communications between the attorney and client are entitled to absolute and complete
protection from disclosure. Id.
C.
Work-Product Doctrine
The work-product doctrine, as codified in Rule 26(b)(3)(A) of the Federal Rules of Civil
Procedure, is based on the Supreme Court' s seminal decision in Hickman v. Tay lor, 329 U.S. 495
(194 7), and protects against the disclosure of certain materials "prepared in anticipation of
litigation or for trial by or for [a] party or its representative (including the ... party's attorney,
consultant, surety, indernnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A). The proponent of
work-product protection has the burden of establishing its applicability.
Sandberg v. Va .
Bankshares, Inc. , 979 F.2d 332, 355 (4th Cir. 1992). "The party seeking protection must make
this showing with a specific demonstration of facts supporting the requested protection, preferably
through affidavits from knowledgeable persons." E.I. Du Pont de Nemours and Co. v. Kolon
8
Industries, Inc., No. 3:09cv58, 2010 WL 1489966, at *3 (E.D. Va. 13 Apr. 2010) (internal
quotations omitted).
'"The application of the work product doctrine is particularly difficult in the context of
insurance claims."' Gilliard v. Great Lakes Reinsurance (UK.) PLC, No . 2:12-cv-00867- DCN,
2013 WL 1729509, at *2 (D.S .C. 22 Apr. 2013) (quoting Kidwiler v. Progressive Paloverde Ins.
Co., 192 F.R.D. 536, 541-42 (N.D. W. Va. 2000)); Schwarz & Schwarz of Va. , L.L.C. v. Certain
Underwriters at Lloyd's London, No. 6:07cv00042, 2009 WL 1043929, at *2 (W.D. Va. 17 Apr.
2009) ("With respect to work product claims by insurance companies, '[t]he nature of the
insurance business requires an investigation prior to the determination of the insured's claim."')
(quoting State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)); Miller
v. Pruneda , No. 3:02- CV-42, 2004 WL 3951292, at *5 (N.D. W. Va. 5 Nov. 2004) ("Because an
insurance company is in the business of investigating claims, investigatory files are normally
prepared in the ordinary course of the insurance company's business although the files were
prepared with an eye toward reasonably foreseeable litigation."); Pete Rinaldi's Fast Foods, Inc.
v. Great Am. Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988) ("Because an insurance company
has a duty in the ordinary course of business to investigate and evaluate claims made by its
insureds, the claims files containing such documents usually cannot be entitled to work product
protection.").
"[T] here is no bright-line test for when work product protection applies for
insurance companies, and instead courts must undertake a case-by-case analysis." Botkin v.
Donegal Mut. Ins. Co. , No. 5:10cv00077, 2011 WL 2447939, at *3 (W.D. Va. 15 Jun. 2011).
Generally, information obtained by an insurance company regarding a claim is deemed to
be in anticipation of litigation and therefore subject to work-product protection only if the
information is obtained after the insurance company denies the claim. Pete Rinaldi 's, 123 F.R.D.
9
at 202; Sch wartz & Schwartz, 2009 WL 1043929, at *3 (finding that work product production
attached only after insurance company disclaimed coverage). "[I]f the insurer argues it acted in
anticipation of litigation before it formally denied the claim, it bears the burden of persuasion by
presenting specific evidentiary proof of objective facts demonstrating a resolve to litigate." Pete
Rinaldi 's, 123 F.R.D. at 202. The "pivotal point" in deciding when the activity changes from
ordinary business to anticipation of litigation is "when the probability of litigation becomes
' substantial and imminent,' or stated otherwise, when litigation becomes 'fairly foreseeable."'
Botkin, 2011 WL 2447939, at *3 (quoting State Farm , 102 F.R.D. at 237)).
III.
COVERAGE FILE ON ATS POLICY
Barlow seeks production of the documents in plaintiffs coverage file on the ATS policy
that plaintiff has not already produced. Plaintiff contends that the entire file is protected by the
work-product doctrine because it was compiled in anticipation of litigation. More specifically, it
states that it began the coverage investigation that is the subject of the file, in April 2016, shortly
after it received a claim for the accident and learned that Barlow had retained counsel, and because
it knew that coverage did not exist under the policy and that coverage had been or would be denied.
Pl.'s Resp. to Mot. to Compel 5; Pl.'s Resp . to Mot. to Appeal 3, 10; Rice Deel. iii! 3, 8, 9. Plaintiff
also alleges that the coverage file contains documents protected by the attorney-client privilege.
Pl. 's Resp. to Mot. to Compel 6; Pl.'s Resp . to Mot. to Appeal 3.
Notwithstanding its contention that the entire coverage file is protected under the workproduct doctrine, plaintiff states that it has produced "factual , non-privileged documents such as
photographs, documents of title, underwriting files, witness statements, etc." (Pl. ' s Resp. to Mot.
to Compel 6; Rice Deel.
if 12) because such documents "are not documents [plaintiff] created in
anticipation of litigation" (Pl. ' s Resp . to Mot. to Appeal 10 n.4 ). Plaintiff describes the documents
10
it is withholding from production variously as "the internal claims notes created by [plaintiffs]
adjusters, which were prepared in anticipation oflitigation" (Pl. 's Resp. to Mot. to Appeal 1O n.4)
and "its claims notes or internal or attorney-client correspondence, which is privileged" (Pl.' s
Resp . to Mot. to Compel 6; Rice Deel.
if 12).
As noted, plaintiff has not produced a privilege log for the documents in the coverage file
on the ATS policy it is withholding. It argues that it was not required to produce a privilege log
because "to do so would waive the work product and attorney-client privilege" and that "[a]
privilege log would require [plaintiff] to identify dates and communications between [claim
manager Rice] and other claim representatives, and such information is protected by work product
and attorney-client privileges." Pl. 's Resp. to Mot. to Compel 3-4.
As previously discussed, a party withholding information on the grounds that it is protected
by the work-product doctrine or attorney-client privilege is required to produce a privilege log that
must "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)(ii). Plaintiff has failed
utterly to demonstrate that it cannot comply with this requirement without waiving the protection
it claims for the withheld documents, particularly in light of the flexibility Rule 26 permits with
respect to identification of withheld materials. Plaintiff essentially asks Barlow and the court to
accept its determination at face value that such a waiver would occur.
It does not provide
information sufficient to enable Barlow or the court to meaningfully evaluate the contention.
The need for such evaluation is enhanced by the apparent inconsistency in plaintiffs
description of the contents of the coverage file and the standards it is using to determine what is
protected from disclosure. As set out above, plaintiff at one point describes the entire coverage
11
file as protected by the work-product doctrine, but at another states that it, in fact, contains material
that is not covered that it has produced. Similarly, plaintiff describes the withheld documents at
one point as only internal claims notes, but at another as such notes in addition to internal and
attorney-client correspondence. In addition, aside from this cursory reference to attorney-client
correspondence, plaintiff makes no showing as to the nature of the material for which it claims the
attorney-client privilege or how it qualifies for such protection.
Assuming without deciding that plaintiff did anticipate litigation relating to the ATS
policy in April 2016, not all documents created after any such anticipation began would necessarily
be protected under the work-product doctrine. For example, documents created after litigation is
anticipated but in the normal course of business would not be subject to such protection. See Nat 'l
Union Fire Ins. Co. ofPittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir.
1992) ("[W]e have held that materials prepared in the ordinary course of business or pursuant to
regulatory requirements or for other non-litigation purposes are not documents prepared in
anticipation of litigation within the meaning of Rule 26(b)(3)." (citing Goosman v. A. Duie Pyle,
Inc., 320 F.2d 45 , 52 (4th Cir. 1963))); Meighan v. TransGuard Ins. Co. of Am., Inc., 298 F.R.D.
436, 446 (N.D. Iowa 2014) ("Even ifthe parties reasonably anticipate litigation, the work product
privilege does not apply to documents that are generated in the ordinary course of business." (citing
St. Paul Reinsurance Co. , Ltd. v. Commercial Fin. Corp., 197 F.R.D. 620, 636-38 (N.D. Iowa
2000))).
Lastly, particularly given the extended proceedings on Barlow's motion to compel, plaintiff
has had ample opportunity to compile a privilege log for the documents it is withholding from the
coverage file on the A TS policy or, alternatively, to develop its contention for not doing so.
Plaintiff did not exploit this opportunity.
12
The court concludes that by failing to produce a privilege log for the documents in the
coverage file for the ATS policy that it is withholding plaintiff has waived its claims of workproduct protection and attorney-client privilege as to these documents. See Westchester Surplus
Lines Ins. Co. v. Clancy & Theys Constr. Co., No. 5:12-CV-636-BO, 2013 WL 6058203 , at *5
(E.D.N.C. 15 Nov. 2013) (finding party had waived work-product protection for documents not
included in the privilege log); Herbalife Intern., Inc. v. St. Paul Fire and Marin e Ins. Co. , Civil
Action No. 5:05CV41, 2006 WL 2715164, at *4 (N.D .W. Va. 22 Sept. 2006) ("Failure to timely
produce a privilege log or the production of an inadequate privilege log may constitute waiver of
any asserted privileges." (citing Atteberry v. Longmont United Hosp. , 221 F.R.D. 644, 649 (D.
Colo. 2004))).
The court will accordingly allow the portion of Barlow ' s motion seeking
production of the documents in plaintiff's coverage file on the ATS policy that it has not already
produced.
IV.
CLAIMS FILE ON ROBBINS POLICY
Barlow seeks production of the documents from the claims file on the Robbins policy listed
in the privilege log plaintiff has provided for that file. The privilege log lists 83 documents as
protected under the attorney-client privilege, 15 documents as protected under the work-product
doctrine, and 2 documents as protected under both the attorney-client privilege and work-product
doctrine, for a total of 100 documents. Privilege Log 2-6. Barlow contends that the privilege log
is deficient because it fails to show that the documents listed are subject to the work-product
doctrine or attorney-client privilege. The court agrees.
Indeed, the privilege log actually shows that eight documents-documents 5, 9, 35 , 41 , 91 ,
92, 93 , and 94-do not meet the requirements of the attorney-client privilege as claimed. Attach.
13
A. 2 Specifically, documents 5, 9, 93, and 94, which are identified as letters, and documents 35,
41 , 91, and 92, which are identified as emails, all have Barlow's counsel of record or attorneys in
the same firm as Barlow's counsel of record listed as recipients. Attach. A. Accordingly, these
eight documents are not protected from disclosure. Although Barlow is necessarily already in
possession of these documents and plaintiff will not be ordered to produce them, the inclusion of
these documents in the privilege log highlights its insufficiency.
Furthennore, for each of the remaining 92 documents, the privilege log lacks a description
that "enable[ s] other parties to assess the claim" of attorney-client privilege or work-product
protection. See Fed. R. Civ. P. 26(b)(5)(A)(ii). The omissions also preclude the court from
assessing the claims of protection. Among the missing information is any description of the
content of the document. Barlow and the court are left to rely on the general characterization of
the documents collectively as relating to potential claims against Robbins arising from the
accident.
Also missing is any identification of the persons listed that makes clear their role with
respect to the events in question. While the identity and role of many persons listed in the log are
apparent, that is not true for many others.
Plaintiff argues that all documents listed are subject to work-product protection because
they were prepared after 1 April 2016, when plaintiff contends it received notice that Barlow had
retained counsel. Pl.'s Resp . to Mot. to Compel 4-5; Rice Deel. iii! 6, 8, 11. This contention is
belied by the log itself which, as detailed above, identifies only a small proportion of the documents
- 17 of 100-as protected by the work-product doctrine. The only protection claimed as to the
2
The documents in the privilege log are not numbered. To facilitate reference to them, the court has prepared and
appended to this order as Attachment A a copy of the privilege log with the documents numbered sequentially.
14
overwhelming majority of the documents is the attorney-client privilege. Notwithstanding that
fact, plaintiff presents scant argument supporting its claims of attorney-client privilege.
Further, while the court will defer ruling on the issue of when plaintiff first anticipated
litigation pending the in camera review provided for herein, even assuming the date was 1 April
2016, the work-product doctrine would not necessarily apply to all such documents. For example,
as previously noted, documents created after litigation is anticipated but in the normal course of
business would not be subject to work-product protection. See Nat '! Union Fire Ins. Co. of
Pittsburgh, Pa., 967 F.2d 980 at 984; Meighan , 298 F.R.D. at 446.
Plaintiff contends that if it were to provide the level of detail requested by Barlow, it would
waive its claim of work-product protection. It has failed to demonstrate that this contention has
any merit. Notably, it makes no such contention with respect to the attorney-client privilege.
The court finds that the proper course for addressing the deficiencies in the privilege log is
to conduct an in camera review of the documents listed in it that have not already been produced.
While the court has considered whether the deficiencies warrant a finding that plaintiff has waived
the protections claimed as to all the listed documents it has not already produced, it has concluded
that such a resolution is inappropriate in light of plaintiffs seemingly conscientious attempt to
comply with the requirement for a privilege log. Plaintiff will therefore be required to submit for
in camera inspection the documents listed in the privilege log it has not already produced.
V.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Barlow' s motion to compel (D.E. 32) is
ALLOWED IN PART and DENIED IN PART on the following terms:
1.
a. Plaintiff shall produce to Barlow no later than 24 September 2018 all documents
in the coverage file on the ATS policy that it is has not previously produced to Barlow.
15
b. Plaintiff shall serve with these documents a duly signed supplemental response
identifying:
(i) each production request as to which plaintiff is producing responsive
documents ; (ii) each document (by Bates number) that is being produced in response to
each such production request; and (iii) each document (by Bates number) not being
produced on the grounds that plaintiff has previously produced it.
2.
a. Except for documents 5, 9, 35, 41 , 91 , 92, 93 , and 94, plaintiff shall file with the
court ex parte and under seal for in camera review by 24 September 2018 each of the
documents identified in plaintiffs privilege log.
b. If there are multiple emails to be reviewed in the same email chain, plaintiff
shall produce one copy of the chain and indicate in an appropriate way the emails in it to
be reviewed. The court does not seek multiple copies of the same email chain.
c. Each document shall be identified by the number assigned it in Attachment A.
d. Plaintiff shall include with the documents a listing of the identification of all
persons named in the privilege log, other than counsel of record in this case, making clear
their role with respect to the events at issue.
3.
The court finds that the award of expenses would be unjust. Each party shall
accordingly bear its respective expenses incurred on plaintiffs motion to compel. See Fed. R. Civ.
P. 37(a)(5)(A)(iii), (B).
SO ORDERED, this 17th day of September 2018 .
United States Magistrate Judge
16
ATTACHMENT A
Privilege Log
16-3914245
DATE
DOCUMENT
TYPE
SENT BY
5/11/17
Email
Emily Rice
5/11/17
Email
Fredric
Marcinak
5/11/17
Email
5/11/17
Email
5/9/17
2/23/17
4/14/17
Frederic
Marcinak
Valerie J
McClintock
Fred Marcinak
Letter
Letter
J.D. Keister
4/11/17
4/10/17
Letter
Letter
J.D . Keister
4/10/17
Letter
4/10/17
Letter
3/9/17
2/16/17
I Ema il
Kara Bordman,
Kenneth B.
Rote nstreich
Kara Bordrnan,
Kenneth B.
Rotenstreich
Em ily Rice
Em ily Rice
11/3/16
Email
Jonathan
Prince
11/7/16
11/7/16
Email
11/16/16
Email
12/20/16
Email
19. 12/21/16
12/21/16
Email
Email
1/31/17
Ema il
Kara Bordman
Mary Ellen
Tin nick
Ma ry Ellen
Tin nick
Mary Ellen
Tin nick
Kara Bordman
Mary Ellen
Tin nick
Mary Ellen
Tin nick
Kara Bordman
1.
2.
3.
4.
5.
6.
7.
8.
Letter
J.D. Keister
l
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?