Decker et al v. Chubb National Insurance Company et al

Filing 23

REPORT AND RECOMMENDATION that 1.) the Boone exception to the attorney-client privilege applies to the claims file in this case; 2.) The opinion letter and time line documents contained in File 8 (see note 6, supra) be protected as work product and w ithheld from plaintiffs; 3.) All other claims file documents be produced to plaintiffs unless, within (20) days of any order adopting the above two recommendations: a. Defendants identify by Bates number the documents they assert are "clearly n ot relevant" to the claims in this case, the basis for their conclusion that such documents are not relevant, and the evidenct in support of their continued redaction or witholding from plaintiffs. b. Defendants identify by Bates number any docu ments contained in File 7 they assert are protected as work product, the basis for the work product protection, and the evidence in support of their continued witholding from plaintiffs. Objections to R&R due by 11/2/2015. Signed by Magistrate Judge Karen L. Litkovitz on 10/14/2015. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JEFFREY DECKER, et al.,
Plaintiffs,

Case No. 1:15-cv-88
Dlott, J.
Litkovitz, M.J.

vs.
CHUBB NATIONAL INSURANCE CO., et al.,
Defendants.

REPORT AND
RECOMMENDATION

On September 8, 2015, the Court ordered the parties to submit briefs on plaintiffs’
request for complete and unredacted production of the claims file documents in this matter.
(Docs. 19, 20, 21). This matter has been referred to the undersigned magistrate judge for a
Report and Recommendation on the pending discovery dispute. (Doc. 22).
I. Background
On January 10, 2014, a fire caused significant damage to plaintiffs’ residence and
property. Plaintiffs carried insurance underwritten by defendants and made a claim for coverage.
On January 8, 2015, before defendants had made a decision on coverage, plaintiffs filed the
instant lawsuit alleging claims of breach of contract and failure to act in good faith in complying
with the terms of the insurance policy. On April 3, 2015, defendants denied plaintiffs’ claim for
coverage.
As part of their discovery requests, plaintiffs sought the insurance claims file. In
response, defendants produced numerous, heavily redacted documents asserting such documents
are protected by the attorney-client privilege and as attorney work product. Documents postdating the service of the complaint on defendants – January 12, 2015 – have been withheld by
defendants. Defendants have produced two privilege logs listing: the “Key to Abbreviations”

(including abbreviations for attorney-client privilege, reserves, attorney work product, nondiscoverable information, and three categories of “non-relevant” material); the “Key to
Author/Recipients”; the page numbers corresponding to the redacted documents in the claims
file; and the notations that “redactions have been made to pages noted below in the Chubb
National Claim files for privilege assertions” and “[t]he privilege asserted regarding each
redaction is set forth on the redacted document using the abbreviations set forth above.”
After hearing argument by the parties on the discovery dispute, District Judge Dlott
ordered defendants to produce in camera to the Court unredacted copies of the documents
produced to plaintiffs, as well as those withheld by defendants, on the ground of attorney-client
privilege or work product protection, finding that plaintiffs sufficiently asserted a prima facie
case of bad faith on the part of defendants. Defendants have produced for the Court’s inspection
documents falling into two categories: (1) documents prepared from the date of loss up to the
service of the complaint on defendants (January 14, 2014 through January 11, 2015) (Files 1
through 6); and (2) documents prepared after plaintiffs’ complaint was served on defendants
through the date of denial of the claim (January 12, 2015 through April 3, 2015) (Files 7 and 8).
Plaintiffs argue the claims file is discoverable under Boone v. Vanliner Ins. Co., 744
N.E.2d 154 (Ohio 2001), which creates an exception to the attorney-client privilege asserted by
defendants in this case. Plaintiffs also contend that defendants have not met their burden of
showing that the documents are otherwise protected as work product. Defendants contend that
the Boone exception to the attorney-client privilege applies only where the documents “may cast
light” on the bad faith claim alleged by plaintiffs and because defendants can establish a good
faith basis for denying the claim, the documents sought by plaintiffs are not relevant and should
not be produced. Defendants also assert that even if the Boone exception applies, the wholesale

2

disclosure of the claims file is unwarranted. Finally, defendants argue that the Court should not
compel disclosure of any documents containing attorney-client communications or work product
after plaintiffs filed suit on January 8, 2015.
II. Attorney-client privilege
The parties agree that Ohio law governs the attorney-client privilege issue in this case. In
Boone, the Ohio Supreme Court created an exception to the attorney-client privilege for
insurance claims file documents where the insured alleged a claim of bad faith denial of
coverage:
[W]e hold that in an action alleging bad faith denial of insurance coverage, the
insured is entitled to discover claims file materials containing attorney-client
communications related to the issue of coverage that were created prior to the
denial of coverage. At that stage of the claims handling, the claims file materials
will not contain work product, i.e., things prepared in anticipation of litigation,
because at that point it has not yet been determined whether coverage exists.
744 N.E.2d at 158. The Ohio Supreme Court reasoned that claims file documents relating to a
claim of a bad faith denial of insurance coverage and generated before a denial decision are not
worthy of protection under the attorney-client privilege. Id. See also Unklesbay v. Fenwick, 855
N.E.2d 516, 521 (Ohio Ct. App. 2006) (“claims-file materials showing an insurer’s lack of good
faith in processing, evaluating, or refusing to pay a claim are unworthy of the protection afforded
by the attorney-client or work-product privilege”).
The Boone exception to the attorney-client privilege for claims file information was
examined by the Sixth Circuit in In re Prof’ls Direct Ins. Co., 578 F.3d 432 (6th Cir. 2009). In
Professionals Direct, the Sixth Circuit upheld the trial court’s decision to order production of all
claims file documents that were created prior to the date of denial of coverage under the Boone
exception to the attorney-client privilege. The Sixth Circuit rejected Professionals Direct’s
argument that the court was required to examine each of the disputed documents individually to
3

determine whether they contained evidence of bad faith and were “unworthy of protection”
under Boone:
Ohio courts have read Boone more broadly than Professionals Direct claims. The
leading Ohio Court of Appeals case, Garg v. State Auto. Mut. Ins. Co., 155 Ohio
App.3d 258, 800 N.E.2d 757 (2003), read Boone to require the disclosure of all
documents that “may cast light” on whether the insurer acted in bad faith. Id. at
763 (emphasis added); see also Boone, 744 N.E.2d at 156 (“The issue before us is
whether, in an action alleging bad faith denial of insurance coverage, the insured
is entitled to obtain, through discovery, claims file documents containing
attorney-client communications and work product that may cast light on whether
the denial was made in bad faith.”) (emphasis added). This, we believe, is a
reasonable application of Boone.
578 F.3d at 442 (citation and footnotes omitted).
This Court, in applying the Boone exception to a discovery dispute involving a bad faith
denial of insurance coverage claim, stated that “[t]he critical issue is whether the documents
‘may cast light’ on whether the insurer acted in bad faith.” Chubb Custom Ins. Co. v. Grange
Mut. Cas. Co., No. 2:07-cv-1285, 2012 WL 1340369, at *4 (S.D. Ohio Apr. 17, 2012) (King,
M.J.) (quoting In re Prof’ls Direct Ins. Co., 578 F.3d at 442 (in turn quoting Garg v. State Auto.
Mut. Ins. Co., 800 N.E.2d 757, 763 (Ohio Ct. App. 2003))). The Court in Grange Mutual noted
that “Ohio courts prefer an in camera review of these documents before providing them to the
opposing party” and ordered the defendant to produce the claims file documents for in camera
review. Grange Mut., 2012 WL 1340369, at *5. See also Scotts Co. LLC v. Liberty Mut. Ins.
Co., No. 2:06-cv-899, 2007 WL 1500899, at *5 (S.D. Ohio May 18, 2007); Unklesbay, 855
N.E.2d at 523; The Scotts Co. v. Emp’rs Ins. of Wausau, No. 14-04-51, 2005 WL 1939422, at *3
(Ohio Ct. App. 2005). The Boone exception “does not automatically permit discovery of
everything contained in a claims file,” such as documents created after the denial of coverage.
Zigler v. Allstate Ins. Co., No. 1:06CV2112, 2007 WL 1087607, at *2 (N.D. Ohio Apr. 9, 2007)
(quoting Unklesbay, 855 N.E.2d at 522 and citing Boone, 744 N.E.2d at 159). See Unklesbay,
4

855 N.E.2d at 523 (privileged claims file documents created after filing of a lawsuit but prior to
receipt of insurance benefits which do not show bad faith in handling claims are not
discoverable).
Defendants contend that the Boone exception to the attorney-client privilege does not
apply in this case because the claims file documents do not “cast light” on whether defendants
acted in bad faith. They allege that the Court should first determine:
whether Chubb National can establish a prima facie case that it had a good faith
basis to deny the claim. If it did have such a reasonable basis to deny Plaintiffs’
claim, it could not have acted in bad faith in doing so. It then follows that any
attorney-client communications between claim[s] counsel and Chubb National
cannot shed light on whether Chubb National acted in bad faith.
(Doc. 20 at 5). Defendants then present evidence and argument to support their claim that the
denial was made in good faith. (Doc. 20 at 5-16, and exhibits attached thereto). Defendants
assert that because the denial of plaintiffs’ claim was made in good faith based on credible
evidence, the Court should conclude that plaintiffs cannot establish a prima facie case of bad
faith and all claims file documents must be protected from disclosure to plaintiffs.
Adopting defendants’ theory to circumvent the Boone exception would require the Court
to prematurely assess the merits of the claims in this case before discovery has been completed.
Defendants essentially argue that plaintiffs are not entitled to compel the discovery they seek
because defendants can prove their good faith claim (based on the evidence in defendants’
possession) which would make plaintiffs’ bad faith claims meritless. Defendants ask this Court
to prejudge the merits of their good faith claim and, if it is supported, to deny plaintiffs’ request
for discovery without giving plaintiffs an opportunity to disprove or challenge those reasons.
Defendants have asserted no authority in support of this proposition, nor has the Court been able
to find any. More importantly, the claims file may contain evidence that could cast doubt on the

5

reasonableness or legitimacy of the “good faith” reasons posited by defendants for the denial
decision. During the discovery phase of litigation, plaintiffs are entitled to discover information
to challenge the “good faith” reasons alleged by defendants. Defendants’ request for a meritsbased assessment is premature because “[a] court does not consider the underlying merits of a
[party’s] claims in evaluating a motion to compel” and arguments directed at the merits of the
plaintiffs’ claims or the viability of affirmative defenses should be addressed by way of
dispositive motion or at trial and not during a discovery dispute. See Stafford v. Jewelers Mut.
Ins. Co., No. 3:12-cv-050, 2012 WL 6568325, at *3 (S.D. Ohio Dec. 17, 2012) (citations
omitted). Indeed, as recognized by Magistrate Judge King in Grange Mutual, attorney-client
communications are discoverable under the Boone exception so long as they “may cast light” on
whether the insurer acted in bad faith. And because this inquiry involves a matter of discovery,
the Court is not passing judgment as to whether the documents discussed herein
ultimately support or undermine the parties’ claims or defenses. Rather, if a
document is relevant to the issue of coverage, claim processing, or other bases set
forth in [the party’s] bad faith claim, then pursuant to the Boone standard, it is
discoverable.
Opinion and Order of Magistrate Judge King at 2 n.1, Grange Mut., No. 2:07-cv-1285 (S.D.
Ohio May 11, 2012), ECF No. 142. Therefore, the Court declines to assess whether defendants’
denial of plaintiffs’ claim was made in good faith based on the evidence presented during this
discovery dispute. Defendants assert no other basis for not applying the Boone exception to this
case. Accordingly, under the Boone exception, the claims file in this case is discoverable despite
the fact that it contains attorney-client communications.
Nevertheless, defendants contend that even if the Boone exception applies to the
documents in this case, there are a “substantial number” of documents in Files 1 through 8 that
“are clearly not relevant and do not ‘cast light’” on defendants’ claim decision-making,

6

specifically, “the detailed billing invoices from Chubb National’s claim[s] counsel.” (Doc. 20 at
19).
The detailed billing invoices to which defendants refer are internal audits of legal
services invoices related to plaintiffs’ coverage claim and the investigation thereof by claims
counsel. These documents reflect communications by claims counsel with others, as well as the
steps taken to investigate plaintiffs’ coverage claim, and “may cast light” on whether defendants
acted in bad faith in their review, investigation, and denial of plaintiffs’ claim. See Opinion and
Order of Magistrate Judge King at 4, ¶ 7, Grange Mut., No. 2:07-cv-1285, ECF No. 142
(ordering production of email chain relating to Chubb’s internal auditing of legal services
invoices). Accordingly, contrary to defendants’ contention, they are relevant and discoverable
under Boone.
Aside from the billing invoices, defendants have not identified which of the other
“substantial number of the redacted documents” are “clearly not relevant” or fail to “cast light
on” the bad faith claim alleged by plaintiffs. Nor can the Court discern which of the nearly 5,000
pages of documents 1 contained in the 12 binders produced by defendants to the Court are “not
clearly relevant.” The unredacted copies of the documents produced to the Court do not include
notations identifying the privilege or protection asserted by defendants or whether defendants
believe specific documents are not relevant. 2 In addition, the privilege logs do not reflect the
privilege, protection, or relevancy of the unredacted documents. With the exception of the
opinion letter and time line discussed below, the Court is unable to assess whether such
documents have been properly withheld from plaintiffs in the absence of such information. See

1

The CDs of the claims file submitted to the Court indicate there are 4,863 pages of documents.
Defendants’ privilege logs state that the privilege or protection for each redaction is set forth on the redacted
documents themselves pursuant to the privilege logs’ “Key to Abbreviations,” but the Court’s copy contains no such
designations.

2

7

Fed. R. Civ. P. 26(b)(5)(A) (privilege logs should “describe the nature of the documents,
communications, or tangible things not produced or disclosed . . . in a manner that, without
revealing information itself privileged or protected, would enable other parties to assess the
claim”); Cooey v. Strickland, 269 F.R.D. 643, 649 (S.D. Ohio 2010) (privilege log should
contain sufficient detail to enable opposing party and court to assess whether privilege is
satisfied).
Although defendants produced the claims file for an in camera review at the Court’s
directive, this does not relieve defendants of their burden to identify the specific documents they
believe are “clearly not relevant” for purposes of the Court’s in camera review. Defendants are
in a superior position to know which of the nearly 5,000 documents are “clearly not relevant”
despite being listed on the privilege log. 3 The task of determining which documents are “clearly
not relevant” is made even more difficult for the Court because the unredacted documents
produced by defendants do not indicated the privilege or protection on the face of the document
or on the privilege logs. It is incumbent on defendants to specify the documents they believe are
“clearly not relevant” before the Court undertakes the monumental task of reviewing the
voluminous claims file in this case. Therefore, to the extent defendants claim that any other
documents contained among the nearly 5,000 pages of claims file documents are “clearly not
relevant,” defendants should be ordered to identify such documents by Bates number, the basis
for their conclusion that such documents are not relevant, and the evidence in support of their
continued redaction or withholding from plaintiffs within 20 days of any order adopting this
Report and Recommendation.

3

For point of comparison, the Ohio Supreme Court in Boone reviewed only 29 documents, 744 N.E.2d at 158, and
the Court in Grange Mutual reviewed only 12 documents in camera. Opinion and Order of Magistrate Judge King
at 1, No. 2:07-cv-1285, ECF No. 142.

8

III. Work product protection
Defendants contend that even if the Boone exception applies to require production of
attorney-client communications contained within the claims file, disclosure of such documents is
not permitted to the extent they qualify as protected work product. Defendants argue that postlawsuit communications between counsel and defendants necessarily addressed or considered the
impact of their actions or decisions on the existing lawsuit. Because these communications had a
dual purpose – providing legal guidance in the anticipation of litigation and advice on a business
decision – defendants contend these communications are protected. In particular, defendants cite
to the opinion letter and time line prepared by claims counsel after suit was filed, but before the
denial decision was made, as being protected work product. They assert the purpose of the
opinion letter and time line was to provide advice on whether there were sufficient grounds to
deny the claim and “exhaustively compile and examine all of the evidence uncovered” during the
investigation to assist in defending the existing lawsuit. Defendants allege that because the
driving force behind the preparation of these documents was the litigation, the documents are
protected as work product and should not be produced.
Plaintiffs contend that none of the documents in the claims file should be protected as
work product. They assert that defendants have failed to meet their burden of showing that the
documents were prepared in anticipation of litigation and not in the ordinary course of business.
Plaintiffs contend that defendants have not submitted evidence supporting their claim of work
product protection as required by Sixth Circuit case law. Plaintiffs also contend that the reports
by “claims counsel” acting in the ordinary course of business of insurance as claims adjusters
cannot be said to have been prepared in anticipation of litigation to qualify for work product
protection.

9

Unlike the attorney-client privilege issue which is governed by state law, the question of
whether the claims file documents are protected as work product is governed by federal law. In
re: Prof’ls Direct, 578 F.3d at 438; In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th
Cir. 2006). An attorney’s work product is reflected “in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and
intangible ways. . . .” Hickman v. Taylor, 329 U.S. 495, 511 (1947). Work product is protected
to ensure that a lawyer can “work with a certain degree of privacy, free from unnecessary
intrusion by opposing parties and their counsel,” and to allow the attorney to “assemble
information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal
theories and plan his strategy without undue and needless interference.” Hickman, 329 U.S. at
510-11. “The work-product doctrine protects an attorney’s trial preparation materials from
discovery to preserve the integrity of the adversarial process.” In re: Prof’ls Direct Ins. Co., 578
F.3d at 438 (citing Hickman, 329 U.S. at 510-14).
With certain exceptions, Rule 26(b)(3) 4 protects from disclosure all: (1) “documents and
tangible things”; (2) “prepared in anticipation of litigation or for trial”; (3) “by or for another
party or its representative (including the other party’s attorney, consultant, surety, indemnitor,
insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). Under the Federal Rules, the work product

4

Rule 26(b)(3) provides:
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by
other means.

Fed. R. Civ. P. 26.

10

protection under Rule 26(b)(3) is not limited to attorneys, but has been extended to documents
and tangible things prepared by or for the party and the party’s representative, as long as such
documents were prepared in anticipation of litigation. Id. See Eversole v. Butler Cty. Sheriff’s
Office, No. 1:99-cv-789, 2001 WL 1842461, at *2 (S.D. Ohio Aug. 7, 2001) (“Rule 26(b)(3) is
not limited solely to attorneys” and “documents and things prepared by the party or his agent fall
within the work product rule.”) (citing 8 Wright & Miller, Federal Practice & Procedure, §
2024). Rule 26(b)(3) excludes from work product protection “[m]aterials assembled in the
ordinary course of business, or pursuant to public requirements unrelated to litigation, or for
other nonlitigation purposes.” Advisory Committee Notes to the 1970 Amendments of Rule 26.
Whether a document has been prepared “in anticipation of litigation” and is protected
work product depends on: “(1) whether that document was prepared ‘because of’ a party’s
subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2)
whether that subjective anticipation was objectively reasonable.” In re Prof’ls Direct Ins. Co.,
578 F.3d at 439 (quoting United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)). “If a
document is prepared in anticipation of litigation, the fact that it also serves an ordinary business
purpose does not deprive it of protection, but the burden is on the party claiming protection to
show that anticipated litigation was the ‘driving force behind the preparation of each requested
document.’” Id. at 439 (quoting Roxworthy, 457 F.3d at 595, 598-99) (internal citations
omitted). The Sixth Circuit has stated:
[A] party may satisfy its burden of showing anticipation of litigation in any of the
traditional ways in which proof is produced in pretrial proceedings such as
affidavits made on personal knowledge, depositions, or answers to interrogatories,
and that the showing can be opposed or controverted in the same manner.
Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 381 (6th Cir. 2009) (internal quotation marks
and citations omitted). An affidavit claiming work product protection must be specific and
11

detailed, and “application of the privilege will be rejected where the only basis for the claim is an
affidavit containing conclusory statement[s].” Id.
Whether a party reasonably anticipated litigation at a particular point in time does not
answer the question of whether a disputed document was prepared “because of” litigation. In re
Prof’ls Direct Ins. Co., 578 F.3d at 439. If the document was created as part of the ordinary
business of a party and the ordinary business purpose was the “driving force” or impetus for
creation of the document, then it is not protected by the work product doctrine. Id. (citing
Roxworthy, 457 F.3d at 595). In determining whether a document has been prepared in
anticipation of litigation, the Court examines the documents themselves and the context within
which they were prepared. Id. See also Grange Mut., 2012 WL 1340369, at *7; In re OM Sec.
Litig., 226 F.R.D. 579, 586 (N.D. Ohio 2005).
The opinion letter and the time line attached as an appendix thereto contain the
designation “Privileged and Confidential Attorney Work Product.” 5 Even though defendants
have not presented affidavits, deposition testimony, or other evidence to show these documents
were created in anticipation of litigation, it is evident from the content, context and timing of the
opinion letter and time line prepared by claims counsel that the driving force behind their
creation was plaintiffs’ lawsuit. At the time these documents were created, suit had already been
filed by plaintiffs. Thus, any subjective anticipation of litigation would be objectively
reasonable. In re Prof’ls Direct Ins. Co., 578 F.3d at 439. In addition, the opinion letter and
time line reflect the attorney’s appraisal of the evidence, as well as the strengths and weaknesses
of the parties’ respective claims. The Court is persuaded from the content and context of these
documents that their primary focus is the provision of legal assistance and analysis for the
5

Unlike the other unredacted documents contained in Files 7 and 8 which were provided to the Court, the opinion
letter on its face specifies that defendants assert the work product protection to enable the Court to identify the basis
for defendants’ withholding of the documents.

12

pending lawsuit. The fact that these documents also serve another purpose – that of providing
advice on the coverage decision – does not deprive them of work product protection. See id.
(citing Roxworthy, 457 F.3d at 598-99). See also King v. CVS Pharmacy, Inc., No. 1:09-CV209, 2010 WL 1643256, at *3 (E.D. Tenn. Apr. 21, 2010) (citing cases). Therefore, all of the
redacted documents contained in File 8 6 should be protected as work product and should be
withheld from plaintiffs.
Defendants also assert that when counsel for defendants contacted plaintiffs’ counsel in
early January 2015 with their offer to enter into a tolling agreement for purposes of filing a
lawsuit, it was a foregone conclusion that in the event of a denial of the claim plaintiffs would
file a lawsuit challenging the denial. Defendants state that all documents prepared from that day
forward were in anticipation of litigation, which actually commenced on January 8, 2015.
Unlike the opinion letter and time line discussed above, the unredacted documents
contained in File 7 7 are not specifically designated as attorney work product on the face of the
documents. Nor do the privilege logs identify that each of the redacted documents contains
attorney work product. Thus, it is unclear whether defendants actually asserted the work product
protection for each of these documents, as opposed to protection under the attorney-client
privilege, or whether defendants are claiming the documents are not relevant, as with the billing
invoices in the pre-lawsuit documents. To the extent that defendants asserted only the attorneyclient privilege for these documents, such documents would be discoverable under the Boone

6

File 8: CNIC-HO-CF-026443- 035028:
Redacted: 026451-453; 026454-455; 026460; 026463-465; 034283; 034385-387; 034388-389; 034485; 034507;
034526; 034540-543; 034599; 034696; 034718; 034737; 034751; 034753; 034763; 034866; 034874; 034882034930; 034931-934; 034935-035008; 035009-014.
7
File 7: CNIC-HO-CF-025850- 026442:
Redacted: CNIC-HO-CF-025865-888; 025935-937; 025944-945; 025959-960; 025963; 025972; 025976; 025983;
026088; 026090; 026092-211; 026119; 026140-159; 026183-184; 026189-192; 026194-214; 026215; 026219;
026223-242; 026244-262; 026265; 026299-300; 026303; 026305-312; 026313-317; 026319-20; 026322; 026324327; 026333-334; 026335-337; 026389-392; 026411-413; 026414-415; 026427-430; 026433; 026435-438; 026442.

13

exception to the attorney-client privilege. In addition, if the attorney-client privilege is the only
privilege asserted for any documents within File 7, defendants have waived protection under the
work product doctrine by not specifically asserting the protection. See Banks v. Office of Senate
Sergeant-at-Arms, 241 F.R.D. 376, 386 (D.D.C. 2007) (citing Carey-Canada v. Cal. Union Ins.
Co., 118 F.R.D. 242, 248-49 (D.D.C. 1986)) (where party fails to assert privilege on privilege
log, privilege is waived). See also Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254
F.R.D. 216, 221, order clarified, 254 F.R.D. 238 (E.D. Pa. 2008) (“Failure to assert a privilege
properly may amount to a waiver of that privilege.”) (internal citations omitted); Carte Blanche
(Singapore) PTE., Ltd. v. Diners Club Int’l, Inc., 130 F.R.D. 28, 32 (S.D.N.Y. 1990) (party’s
failure to “specify work product as the particular privilege” constituted a waiver of that
privilege). The burden is on defendants to identify the documents for which they seek work
product protection and to present evidence showing the documents were created because of the
prospect of litigation, as opposed to an ordinary business purpose. Biegas, 573 F.3d at 381.
Without any evidence or explanation from defendants as to why the documents in File 7
constitute work product, as opposed to documents created in the ordinary course of business, the
Court is unable to conclude they should be withheld as work product simply by reviewing the
content of such documents. 8 Therefore, to the extent defendants claim that any documents
contained in File 7 are protected as work product, defendants should be ordered to identify such
documents by Bates number, the basis for the work product protection, and the evidence in
support of their continued withholding from plaintiffs within 20 days of any order adopting this
Report and Recommendation.

8

For example, one billing invoice document appears to have been created after the lawsuit was filed, but it refers to
line items that predate the filing of the lawsuit.

14

IT IS THEREFORE RECOMMENDED THAT:
1. The Court find the Boone exception to the attorney-client privilege applies to the claims file
in this case;
2. The opinion letter and time line documents contained in File 8 (see note 6, supra) be
protected as work product and withheld from plaintiffs.
3. All other claims file documents be produced to plaintiffs unless, within 20 days of any Order
adopting the above two recommendations:
a. Defendants identify by Bates number the documents they assert are “clearly not
relevant” to the claims in this case, the basis for their conclusion that such documents are not
relevant, and the evidence in support of their continued redaction or withholding from plaintiffs.
b. Defendants identify by Bates number any documents contained in File 7 they assert
are protected as work product, the basis for the work product protection, and the evidence in
support of their continued withholding from plaintiffs.

Date: 10/14/2015

s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JEFFREY DECKER, et al.,
Plaintiffs,

Case No. 1:15-cv-88
Dlott, J.
Litkovitz, M.J.

vs.
CHUBB NATIONAL INSURANCE CO., et al.,
Defendants.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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