CSX Transportation Inc v. Columbus Downtown Development Corporation et al
OPINION AND ORDER granting in part, denying in part, and taking under advisement in part 219 and 244 Motions to Compel. Signed by Magistrate Judge Kimberly A. Jolson on 4/5/2019. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
CSX TRANSPORTATION, INC, et. al.,
Civil Action 2:16-cv-557
Judge James L. Graham
Magistrate Judge Jolson
OPINION AND ORDER
This matter is before the Court on Plaintiffs CSX Transportation, Inc.’s and Norfolk
Southern Railway Company’s (“Plaintiffs”) Motion to Compel Discovery and the Privilege Log
of Defendant Cincinnati Insurance Company (“CIC”). (Doc. 219). In this Order, the Court also
addresses Plaintiffs’ subsequent Motion to Compel Document Production from Defendant CIC
and to Compel Depositions Testimony from David Cunningham, Aaron Tooley, and Jason Wolfe
(Doc. 244) (the “Motions”), because it is related to and, in part, supplements the prior motion.
Where appropriate, the Plaintiffs’ and CIC’s (the “parties’”) substantive arguments will be
addressed subsequent to this Order, as further explained below. For the reasons that follow, the
Motions are GRANTED in part, DENIED in part, and TAKEN UNDER ADVISEMENT in
The Court elsewhere has detailed Plaintiffs’ allegations and the relationships among the
parties. (See generally Doc. 153). The following is relevant to this Motion.
Plaintiffs allege that discovery in this litigation has revealed that “CIC failed to reasonably
process Plaintiffs[’] claims and confirmed conflicts of interest in handling the claims.” (Doc. 2191 at 3). Upon this realization, Plaintiffs asserted bad faith claims against CIC for mishandling their
respective claims. (Doc. 179). Plaintiffs argue that CIC’s response to their discovery requests is
deficient given their assertion of bad faith. (Doc. 219-1 at 3). Plaintiffs moved to compel certain
discovery and, in the alternative, asked the Court to conduct an in camera review of specified
documents. (Doc. 230). Plaintiffs’ Reply Brief in Support of the Motion identifies the twelve
discovery disputes before the Court:
Production of CIC000073-77;
Production of CIC001094;
Production of CIC001478;
Production of CIC001479;
Unredacted production of Norfolk Southern’s claim file;
Records of all continuing education courses taken by Brad Zimmerman, David
Cunningham, and Jennifer Hayes;
7. All records of CIC courses offered by CIC’s education and training department for
Brad Zimmerman, David Cunningham, and Jennifer Hayes;
8. Production of course or education materials prepared, maintained or used by CIC
related to proper claims handling, policy or procedures, guidelines, instructions,
determining coverages, and/or assessing damages;
9. All cost estimates prepared by Rail Services, Inc. (“RSI”);
10. Supplementation of Plaintiffs’ Interrogatory Nos. 29-32;
11. Supplementation of Plaintiffs’ Request for Document Production No. 14;
12. All nonprivileged attorney/client communications as permitted by Boone v.
Vanliner Ins. Co., 744 N.E.2d 154 (Ohio 2001).
(Id. at 2–3).
The Court issued an order denying in part, denying without prejudice in part, ordering the
submission of certain documents for in camera review, and ordering the parties to meet and confer
regarding certain documents.
(See generally Doc. 231). Specifically, the Court ordered the
Submit documents from disputes 1, 2, 3, 5 and 12 for in camera review;
Meet and confer regarding disputes 4, 6, 7, 8 and part of 10;
Deny the motion without prejudice as to dispute 9; and
Deny the motion as to disputes 10 and 11.
(Id. at 11).
CIC represented on February 26, 2019, that counsel was “still assessing whether there are
any documents responsive to dispute 12, and will provide [the Court] with a response by the March
5, 2019 deadline outlined in your order.” CIC failed to send any documents or update the Court
by the March 5, 2019 deadline. Accordingly, the Court finds this dispute is ripe for resolution.
After the first order, the Court inspected the documents from disputes 1, 2, 3, and 5 in
camera, and ordered CIC to appear for an ex parte hearing to answer questions regarding the
documents. The hearing was held on March 13, 2019. (Doc. 246).
As for the motion with regards to dispute 9, it was denied without prejudice (Doc. 231 at
11), but Plaintiffs subsequently renewed the request. (Doc. 244). Plaintiffs assert that their
supplemental briefing on this dispute provides “the necessary context, articulate the need for the
documents and refute CIC’s unsupported assertion that RSI acted as a consulting expert.” (Doc.
244-1 at 4). In this motion, Plaintiffs also ask the Court to compel deposition testimony of David
Cunningham, Aaron Tooley, and Jason Wolfe. (Id. at 2).
The parties met and conferred regarding disputes 4, 6, 7, 8, and 10, and submitted a status
report via email on February 27, 2019. Unfortunately, but not altogether unpredictably, the status
report indicated nothing was resolved. At the ex parte hearing, the Court inquired about dispute
4, the “16-year history of Messer’s losses and CIC’s earned Premiums form Messer.” Messer
opposed the motion to compel this information. (Doc. 227). The Court asked CIC’s counsel to
prepare an index, similar to a privilege log, of the disputed documents and granted counsel’s
request for thirty days to do so. Therefore, counsel is ORDERED to submit this document to the
Court no later than April 12, 2019. All other disputes are ripe for resolution. In the interest of
efficiency, and to facilitate the progression of discovery towards a much-anticipated termination,
the Court issues the following order resolving the ripe disputes.
According to Rule 26(b), “[p]arties 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.”
Fed. R. Civ. P. 26(b)(1). “Determining the proper scope of discovery falls within the broad
discretion of the trial court.” Gruenbaum v. Werner Enter., Inc., 270 F.R.D. 298, 302 (S.D. Ohio
2010) (citing Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)).
“On notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The moving party bears the burden
of demonstrating relevance. Gruenbaum, 270 F.R.D. at 302 (citation omitted). “If the movant
makes this showing, ‘then the burden shifts to the non-movant to show that to produce the
information would be unduly burdensome.’”
Ball v. Kasich, No. 2:16-CV-282, 2018 WL
6242230, at *3 (S.D. Ohio Nov. 29, 2018) (quoting Prado v. Thomas, No. 3:16-cv-306, 2017 WL
5151377, at *1 (S.D. Ohio Oct. 19, 2017)).
A. Disputes 1, 2 and 3: Attorney Client Privilege and Work-Product Doctrine
CIC argues the attorney client privilege and work-product doctrine shield CIC000073-77,
CIC001094, and CIC001478 from production. (Doc. 228 at 14).
The attorney-client privilege protects against the disclosure of communications between
an attorney and his or her client. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). The
Sixth Circuit Court of Appeals articulated the following test to determine whether a
communication is privileged: “(1) where legal advice of any kind is sought (2) from a professional
legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4)
made in confidence (5) by the client, (6) are at his [or her] insistence permanently protected (7)
from disclosure by himself [or herself] or by the legal advisor, (8) unless the protection is waived.”
Erickson v. Hocking Tech. Coll., 2:17-cv-360, 2018 U.S. Dist. LEXIS 50075, at *3 (S.D. Ohio
Mar. 27, 2018) (citing Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998)).
“The burden of establishing the existence of the privilege rests with the person asserting
it.” Id. (quoting United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999)). Simply asserting
that information is privileged “is insufficient to meet the burden.” Id. (quoting In re Trans-Indus.,
Inc., No. 1:10-MC-34, 2011 U.S. Dist. LEXIS 37910, at *10 (N.D. Ohio Mar. 28, 2011)). Further,
Rule 26 of the Federal Rules of Civil Procedure requires a party that seeks to withhold otherwise
discoverable information on the basis of privilege to assert a claim of privilege and “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).
To be privileged, communications between non-attorney corporate employees must be
made in order to secure legal advice from counsel. Boltz v. Untied Process Controls, 1:16-cv-703,
2017 U.S. Dist. LEXIS 102913, at *15 (S.D. Ohio June 23, 2017) (citing Upjohn, 449 U.S. at
394)); see also Graff v. Haverhill N. Coke Co., No. 1:09-CV-670, 2012 U.S. Dist. LEXIS 162013,
at *22 (S.D. Ohio Nov. 13, 2012) (“[C]ommunications among non-lawyer corporate personnel are
protected if the dominant intent is to prepare the information in order to get legal advice from the
lawyer[.]”) (internal citations omitted). To establish that a communication between two nonattorneys is protected under the attorney-client privilege, the party asserting privilege must prove
that the “dominant intent” of the communication was to secure “legal advice from [a] lawyer.” See
In re Behr Dayton Thermal Prods., LLC, 298 F.R.D. 369, 375 (S.D. Ohio 2013) (further citations
The fact that information was later shared with counsel does not make it privileged. Boltz,
2017 U.S. Dist. LEXIS 102913, at *17 (citations omitted); see also Neuder v. Battelle Pac. N.W.
Nat’l Lab., 194 F.R.D. 298, 295 (D.D.C. 2000) (“[D]ocuments prepared by non-attorneys and
addressed to non-attorneys with copies routed to counsel are generally not privileged since they
are not communications made primarily for legal advice[.]”). “Where the evidence equally
supports an inference that the communication either was, or was not, related to the subsequent
request for legal advice, the court must rule in the challenging party’s favor.” Id. (quotations and
The work-product doctrine is codified in Rule 26(b)(3):
(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
(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.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must
protect against disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the litigation.
Fed. R. Civ. P. 26(b)(3).
The Sixth Circuit has adopted the “because of” test to determine whether a document was
prepared in anticipation of litigation. Boltz, 2017 U.S. Dist. LEXIS 102913, at *10. That test is:
“(1) whether a document was created because of a party’s subjective anticipation of litigation, as
contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of
litigation was objectively reasonable.” Id. (quoting United States v. Roxworthy, 457 F.3d 590,
594 (6th Cir. 2006)). Accordingly, the party asserting work-product must “prove that anticipated
litigation was the driving force” behind the preparation of the disputed document. Id. (citations
omitted). 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); see also Graff
v. Haverhill N. Coke Co., No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *12 (S.D. Ohio
Nov. 13, 2012) (“Thus, we 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).”) (further citations
1. Dispute 1 (CIC000073-77)
CIC000073-77 is a portion of the claim file titled “Legal” with subheadings of Litigation
Lit. Status Description (CIC000073), Legal Budget (CIC000074), Legal Subclaims (CIC000075),
Legal Details (CIC000076), and Legal Participants (CIC000077). (Doc 228 at 16). The document
was created on June 27, 2016, seven days after the commencement of this case. The ex parte
hearing clarified that this document is a print out of CIC’s “computer claim note system,” which
is software used to create litigation budgets and communicate them with outside counsel. (Doc.
265 at 6). Brad Zimmerman inputted the information. (Id.).
Work-product shields this document from production. It was created because of CIC’s
subjective anticipation of litigation, as it is a litigation budget, and was created after the
commencement of litigation. Further, the anticipation of litigation was objectively reasonable
because the lawsuit was filed and ongoing. Therefore, it meets the two “because of” factors,
Roxworthy, 457 F.3d at 594, and was not created in the ordinary course of business. The motion
to compel an unredacted copy of CIC000073-77 is DENIED.
2. Dispute 2 (CIC001094)
CIC001094-96 is a string of emails between David Cunningham (CIC claims handler) and
Jim Richards (CIC casualty associate manager), with Jay O’Hara (manager of CIC’s recovery
subrogation unit) carbon copied on the redacted email dated December 8, 2015 (the “email”). CIC
redacted the text of the email in its entirety, asserting attorney-client and work-product privileges.
Specifically, CIC’s privilege log states the email was “on hiring counsel and legal strategy,” and
the privilege claimed is “[w]ork product and legal strategy.”
(Doc. 219-2 at 2).
memorandum in opposition to the Motion told the Court the following:
CIC001094 contains email correspondence between David Cunningham (CIC
claims handler) and Jay O’Hara (CIC in-house counsel). Mr. O’Hara was
appointed legal counsel on the file in anticipation of litigation on the CSX claim.
Again, Mr. O’Hara and Mr. Cunningham’s communication does not concern the
claim administration of the CSX claim. Rather, it discusses the legal claim related
to this matter and is protected by the work-product privilege.
(Id. at 17). The briefing is misleading in two ways. First, the email is not between Mr.
Cunningham and Mr. O’Hara, but a string of emails between Mr. Cunningham and Mr. Richards
with Mr. O’Hara carbon copied on only one of the emails. Second, at the ex parte hearing, the
Court was informed that Mr. O’Hara is not a lawyer, but instead the manager of CIC’s recovery
subrogation unit. (Doc. 265 at 13–14). Mr. O’Hara was assigned to the file when CIC began to
look into pursuing subrogation for any payments it might make on behalf of CSX. (Id. at 14)
The attorney client privilege does not shield the email from production. The sender, Mr.
Richards, is not seeking legal advice in the email. See Reed, 134 F.3d at 356. Neither the direct
nor copied recipients, Mr. Richards and Mr. O’Hara, are professional legal advisors.
Moreover, even if one of the recipients were a “professional legal advisor,” they were not “acting
in their capacity as such” with regards to the email. Instead, they are acting in a business capacity
in discussing subrogation regarding CSX’s policy. The Court need not consider the remaining
Reed requirements because the email fails the first two.
Nor is the email work product. “[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.” Fed. R. Civ. P. 26(b)(3). The “because of” test determines whether a document
was prepared in anticipation of litigation: “(1) whether a document was created because of a party’s
subjective anticipation of litigation, as contrasted with an ordinary business purpose, and (2)
whether that subjective anticipation of litigation was objectively reasonable.” Boltz, 2017 U.S.
Dist. LEXIS 102913, at *10 (quoting Roxworthy, 457 F.3d at 594). CIC has failed to prove that
anticipated litigation was the driving force behind the preparation of the disputed document. See
id. This is because the email discusses business considerations including pursuing subrogation
should CIC have to pay out on CSX’s policy. (Doc. 265 at 14). This is part of CIC’s ordinary
business. Further, the content of the email has nothing to do with the litigation between CIC and
CSX because it had not yet commenced and, as discussed below with respect to disputed 5 and 12,
CIC did not anticipate litigation until the complaint (Doc. 1) was filed on June 20, 2016. Therefore,
the email fails the “because of” test and is not shielded from production by the work-product
As the email is not protected by any asserted privilege, the Motion is GRANTED and CIC
is ORDERED to produce an unredacted copy within five days of the entry of this order.
3. Dispute 3 (CIC001478)
CIC001478 is a one-page document titled “Large Loss Review” and dated January 7, 2016.
At the hearing, counsel for CIC and representative Brad Zimmerman described it as a “reserve
increase memorandum,” which is a document created whenever a claim crosses the $250,000
threshold. (Doc. 265 at 15). CIC redacted the “Management Comments” section, in which Mark
Wietmarschen, a manager on CIC’s large accounts unit, wrote three sentences. (Doc. 265 at 16).
The purpose of the “Management Comments” section is to make “some general comments that
would get passed up to probably upper management so that they understand what this reserve
increase or what this large reserve consists of.” (Id.). The gist of the redacted section is that
management predicts they will be able to mitigate CSX’s losses by seeking subrogation from other
parties at fault. (Id. at 17). Mr. Wietmarschen is not a lawyer, nor is Truitt Graue, the underwriter
on the file, whose name also appears on the document. (Id. at 16). CIC’s memorandum in
opposition states that “CIC001478 is documentation prepared by CIC after an attorney ha[d] been
assigned to this matter, in anticipation of litigation.” (Id.).
The “Management Comments” section is not shielded from production by the attorney-
client privilege. The drafter, Mr. Wietmarschen, is not seeking legal advice. See Reed, 134 F.3d
at 356. No evidence has been presented showing that a legal professional was the intended
audience of the reserve increase memorandum or specifically the “Management Comments”
section. The impetus behind creating the document was a business procedure requiring its creation
when a certain financial threshold is exceeded. (Doc. 265 at 15). The “Management Comment”
section was drafted by a non-lawyer for a business audience. (Id.). On its face, it does not seek
legal advice. See Reed, 134 F.3d at 356. Given this, the Court need not consider the remaining
Reed requirements because the email fails the first three.
Nor is the “Management Comments” section work product. If a document is created in the
ordinary course of business, and an ordinary business purpose was the “driving force” behind
creation of the document, then it is not protected by the work-product doctrine. Boltz, 2017 U.S.
Dist. LEXIS 102913, at *10 (citing Roxworthy, 457 F.3d at 595). As explained above, CIC001478
was created due to business procedures and for a business audience. This document was not
created “because of” anticipated litigation; it was drafted more than five months prior to CIC’s
first anticipation of litigation against Plaintiffs—the date the complaint was filed. Accordingly,
CIC has failed to prove anticipated litigation was the driving force behind the creation of any part
As CIC001478 is not protected by any asserted privilege, the Motion is GRANTED and
CIC is ORDERED to produce an unredacted copy within seven days to the entry of this order.
B. Disputes 5 and 12: Boone v. Vanliner Ins. Co., 744 N.E. 2d 154 (Ohio 2001)
Plaintiffs argue that CIC has improperly asserted attorney-client privilege to avoid
producing an unredacted copy of Norfolk Southern’s claim file and all nonprivileged attorney-
client communications as permitted by Boone. CIC argues that communications and information
related to its defense in this litigation are protected and not subject to production under Boone.
In Boone, the Supreme Court of Ohio described the issue before it as 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.” William Powell Co. v. OneBeacon Ins. Co.,
1:14-cv-807, 2017 WL 3927525, at *1–2 (S.D. Ohio June 21, 2017) (quoting Boone v. Vanliner
Ins. Co., 744 N.E.2d 154, 156 (Ohio 2001)). The Supreme Court of Ohio held that such documents
were subject to production in the following circumstance:
[I]n 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.
Boone, 744 N.E.2d at 158.
Nothing in Boone, nor subsequent revisions to the Ohio Code, require a prima facie
showing of bad faith; “rather, the exception applies if the documents predating the denial of
coverage may cast light on the bad faith claim.” William Powell Co., 2017 WL 3927525, at *3
(emphasis in original); see also Boone, 774 N.E.2d at 158 (“[T]he 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.”); In re Prof’l Direct Ins. Co., 578 F.3d 432, 442
(6th Cir. 2009) (stating that Boone can be read broadly and can be interpreted to allowing
discovery between an insurer and its attorney whenever the insured alleges bad faith). In a
previous order (Doc. 231), the Court denied CIC’s argument that a subsequent revision to the Ohio
Code disrupts the application of Boone to the instant disputes.
At the ex parte hearing, the Court inquired as to the date in which CIC first anticipated
litigation against Plaintiffs. CIC stated that while it knew litigation was always a possibility, this
lawsuit was filed before CIC’s review process time period ended and it was “surprised” by the
filing. (Doc. 265 at 3, 4). Counsel for CIC stated that CIC first anticipated litigation “the date
[Plaintiffs] filed the lawsuit.” (Id. at 5).
To resolve many of the discovery disputes, the Court must determine when CIC first
anticipated litigation and, relatedly, a “constructive denial date” of Plaintiffs’ insurance claims.
See In re Professional Direct Ins. Co., 578 at 442 (holding the trial court had authority to select a
“constructive denial date” on the day the insurer notified the insured that it would seek declaratory
judgment that its claim was not covered). Under the facts of this case and CIC’s representations
at the ex parte hearing, the Court finds that CIC first anticipated litigation on June 20, 2016, the
day the complaint (Doc. 1) was filed. Further, this is also an appropriate “constructive denial date”
for purposes of the Boone exception. See id. (“The magistrate took a practical approach [to the
issue of no denial date], asking at what point [the insurer] decided it would not cover the [insured’s]
1. Dispute 5 (Unredacted Copy of Norfolk Southern Claim File)
The Court inquired as to the contents of the Norfolk Southern Claim File at the ex parte
hearing. CIC informed the Court that the file contains everything that had transpired since Norfolk
Southern submitted its claim. (Doc. 265 at 19–20). However, this was not until after the instant
litigation had begun. (Id.). For this reason, CIC represents that most, if not all, of the file postdates
the commencement of litigation. (Id.).
To the extent that there are documents created before the commencement of litigation, June
20, 2016—which the Court finds to be the “constructive denial date” for purposes of Boone—
Plaintiffs are entitled to their production. Accordingly, Plaintiffs are entitled to discover claims
file materials containing attorney-client communications related to the issue of coverage that were
created prior to June 20, 2016. CIC is ORDERED to produce such documents within seven days
of the entry of this order.
2. Dispute 12 (All non-privileged attorney-client communication as permitted
As noted previously, CIC represented to the Court that counsel was “still assessing whether
there are any documents responsive to Dispute 12, and will provide you with a response by the
March 5, 2019 deadline outlined in your order.” But CIC failed to send any documents or notify
the Court that no responsive documents were located. Under Boone, Plaintiffs are “entitled to
discover claims file materials containing attorney-client communications related to the issue of
coverage that were created prior to denial of coverage.” 744 N.E.2d at 158. As explained above,
in this case the Court must select a “constructive denial date,” which is the date the complaint was
filed. It is unclear whether responsive documents exist. But, to the extend they do, CIC is
ORDERED to produce all claims file materials containing attorney-client communications related
to the issue of coverage that were created prior to June 20, 2016, within seven days of the entry of
C. Disputes 6, 7 and 8.
Plaintiffs next argue that CIC must produce the following responsive documents:
6) Records of all continuing education courses taken by Brad Zimmerman, David
Cunningham, and Jennifer Hayes;
7) All records of CIC courses offered by CIC’s education and training department
for Brad Zimmerman, David Cunningham, and Jennifer Hayes;
8) Production of course or education materials prepared, maintained or used by CIC
related to proper claims handling, policy or procedures, guidelines, instructions,
determining coverages, and/or assessing damages.
(Doc. 219-1 at 11). CIC argues Plaintiffs’ request to compel is improper because Plaintiffs failed
to request these documents in the regular course of discovery. (Id. at 26) (citing McDermott v.
Continental Airlines, Inc., 339 Fed. App’x 552, 560 (6th Cir. 2009) (citing Petrucelli v. Bohringer
and Ratzinger, 46 F.3d 1298, 1310 (3rd Cir. 1995) (“‘[A] party must first prove that it sought
discovery from its opponent to succeed on a motion to compel.”))). Therefore, the Court will
determine whether Plaintiffs sought documents responsive to Disputes 6, 7, and 8 in discovery.
Plaintiffs maintain that the disputed documents were requested under Request for
Production No. 14 (“RFP 14”), which asked for:
Full and complete copies of any manuals, policies, procedures, handbooks,
guidelines, and/or other documents prepared, maintained, and/or used by CIC
relating to processing, investigating, and/or determining coverage claims submitted
Plaintiffs’ interpretation of RFP 14 is too broad. The Court finds RFP 14 does not request
“[r]ecords of all continuing education courses taken by Brad Zimmerman, David Cunningham,
and Jennifer Hayes,” “all continuing education courses,” and “all records of CIC courses offered
by CIC’s education and training department.” Accordingly, the Motion with regards to dispute 6
and 7 is DENIED.
The Court, however, finds that RFP 14 does ask for the materials in dispute 8. Although
RFP 14 does not include the term “educational materials,” this is implied by “manuals, policies,
procedures, handbooks, guidelines, and/or other documents prepared, maintained, and/or used by
CIC relating to processing, investigating, and/or determining coverage claims submitted to CIC.”
Accordingly, the Motion is GRANTED with regards to disputes 8, and CIC is ORDERED to
produce any responsive documents within five days of the entry of this order.
D. Dispute 9 (All Cost Estimates Prepared by RSI) and Deposition Testimony of
Aaron Tooley and Jason Wolfe
The outcome of these three disputes hinges upon whether they were 1) prepared by RSI as
consultants for CIC in its processing of Plaintiffs’ insurance claims, or 2) prepared by RSI as
experts in anticipation of litigation. The facts before the Court weigh in favor of the former.
The Court previously denied this motion as to dispute 9 without prejudice because Plaintiff
failed to discuss the document in their prior briefing, and the Court was skeptical that compelling
the cost estimates may be premature given the deadline for rebuttal expert reports had not yet
passed. (Doc. 231 at 9). Plaintiff has, however, provided the Court with a clear picture in its
subsequent briefing, and the dispute is ripe for resolution.
Aaron Tooley was an employee of RSI during the relevant time frame and coordinated the
damages investigation. (Doc. 258 at 5). Jason Wolfe of Forsgren was retained by RSI to complete
the expert analysis of damages. (Id.). CIC retained RSI, after it was first notified of a potential
claim, to provide it with an assessment of the damages claimed by CSX related to the project. (Id.
at 4). RSI completed two initial cost estimates for CIC before litigation commenced. (Id.). CIC
represents that both of the pre-litigation cost estimates were incomplete due to CSX’s failure to
provide full information related to its alleged damages. (Id.). CIC has provided both of the prelitigation cost estimates to Plaintiffs. (Id.).
Jason Wolfe prepared a subsequent cost estimate report related to Plaintiffs’ first party
claim after receiving additional cost information, and CIC has withheld this document and refused
to allow Wolfe to testify about this report, or anything else after June 2016. (Doc. 244-1 at 5).
CIC states, without support or citation, that “[a]fter litigation began, RSI continued its work for
CIC in an expert capacity related to the damages alleged by CSX and NS as part of this litigation.”
(Id.). Due to this assertion, CIC claims that all post-litigation work completed by RSI is protected
by the work-product privilege. (Id. at 4–5). Plaintiffs argue the cost estimates and witness
testimony may cast light on CIC’s mishandling of Plaintiffs’ claims and whether CIC was
reasonably justified in failing to pay or process the claims. (Doc. 244-1 at 6).
CIC first argues that Plaintiffs’ Motion to Compel filed March 1, 2019, should be denied
in its entirety due to Plaintiffs’ failure to comply with the meet and confer requirements of Rule
37 of the Federal Rules of Civil Procedure and Southern District of Ohio Local Rule 37.1. (Doc.
258 at 5–8). Rules 26(c)(1) and 37(a)(1) require that the parties meet and confer in good faith.
This requirement “requires counsel to communicate in good faith with each other—via telephone,
letter correspondence, or email—to attempt to resolve any discovery disputes prior to the filing of
a motion to compel.” O’Malley v. NaphCare Inc., 311 F.R.D. 461, 464 (S.D. Ohio 2015). Movant
is not required to file a separate document to certify compliance with the meet and confer rules.
See Harris v. Sowers, 2:16-cv-888, 2019 U.S. Dist. LEXIS 30889, at *1 (S.D. Ohio Feb. 27, 2019)
(Finding the meet and confer requirement of Rule 37(a)(1) was satisfied where movant sent a letter
containing the discovery requests but received no response.). Plaintiffs stated the following in its
In addition to prior conferences between Plaintiffs’ counsel and counsel for CIC
(including discourse between the parties during the depositions), Plaintiffs
submitted a correspondence to CIC, copying Tooley and Wolfe, on February 27,
2019, and followed up with a telephone call on March 1, 2019 (left message) in a
good faith effort to resolve the outstanding discovery deficiencies, but CIC has
failed to respond.
(Doc. 244-1 at 3).
CIC notes that Plaintiffs waited fifty days after David Cunningham’s deposition, and fortyeight days after Aaron Tooley and Jason Wolfe’s depositions, to issue its February 27, 2019
correspondence regarding CIC’s alleged discovery deficiencies. (Doc. 268 at 6).
correspondence was sent two days before the discovery deadline. (Id.). On March 1, 2019, counsel
for Plaintiffs left a voicemail for CIC’s counsel at 2:15 p.m. and filed the Motion to Compel less
than four hours later. (Id.). CIC emphasizes that the parties met and conferred on February 25,
2019, but Plaintiffs’ failed to raise any of the issues outlined in their February 27, 2019
correspondence at the meeting. (Id. at 7).
The Court is troubled by Plaintiffs’ conduct in both failing to raise the disputes closer to
the completion of the relevant depositions and failing to discuss the disputes at the February 25,
2019 meeting. However, CIC indicated it would not waiver on its assertion of privilege regarding
dispute 9, as it fully briefed the issue in its opposition to the previous order. (See Doc. 228 at 27–
28). Further, CIC’s counsel objected to questioning at the disputed depositions despite Plaintiffs’
threats of filing a motion to compel. (See Docs. 244-3, 244-4, 244-5). Under the present
circumstances, the Court finds Plaintiffs have satisfied the meet and confer requirement and will
consider the Motion to Compel (Doc. 244).
1. Dispute 9 (Cost Estimates Prepared by RSI)
Plaintiffs argue that the cost estimates “prepared by RSI and/or Forsgren must be
produced . . . because they may cast light on whether CIC handled [Plaintiffs’] first party claims
in bad faith by not reasonably considering evidence to arrive at a claim determination.” (Doc. 24418
1 at 5). Plaintiffs argue that CIC’s possession of these cost estimates is “a key fact in determining
if CIC met the standards of a reasoned analysis of claim data to arrive at a claim determination”
and “may show that CIC lacked a reasonable justification for failing to pay Plaintiffs’ claims, failed
to conduct any reasonable investigations with respect to the cost estimates, and/or dragging its feet
with respect to their first party claims.” (Id.). CIC responds that the “draft reports completed by
RSI after litigation began are protected under FRCP 26.” (Doc. 258 at 4). Specifically, during
Mr. Wolfe’s deposition, counsel for CIC stated that Mr. Wolfe’s “cost analysis are part of the
expert reports that [CIC is] using at trial. Since litigation started . . . shortly after this report was
rendered, any draft reports that he has issued after that to [CIC] and us as counsel are draft reports
not discoverable by [Plaintiffs].” (Id.).
CIC’s basis for withholding the cost estimates is Rule 26(b)(4) of the Federal Rules of Civil
Procedure. The Rule states that Rules 26(b)(3)(A) and (B) protect drafts of any report or
disclosure, regardless of the form in which the draft is recorded. Fed. R. Civ. P. 26 (b)(4)(B).
Rules 26(b)(3)(A) and (B) pertain to the work-product privilege. For material to be protected by
Rule 26(b)(3)(A), it must have been “prepared in anticipation of litigation.” The two-factor
“because of” test determines whether a document was prepared in anticipation of litigation: “(1)
whether a document was created because of a party’s subjective anticipation of litigation, as
contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of
litigation was objectively reasonable.” Boltz, 2017 U.S. Dist. LEXIS 102913, at *10 (quoting
Roxworthy, 457 F.3d at 594). To determine a party’s subjective intent, the Court must evaluate
whether the anticipation of litigation, as opposed to an ordinary business purpose, was “the driving
force behind the preparation of each requested document.” Id. (citing Graff, 2012 U.S. Dist.
LEXIS 162013, at *10.
Here, the facts do not support a finding that the cost estimates were prepared because of
CIC’s subjective anticipation of litigation. It should first be noted that the commencement of
litigation did not alleviate CIC of its duty to process Plaintiffs’ insurance claims in good faith. See
Valley Force Ins. Co. v. Fisher Klosterman, Inc., No. 1:14-cv-792, 2106 U.S. Dist. LEXIS 55485,
at *33 (S.D. Ohio Apr. 26, 2016) ([T]he insurer still retains a duty to act in good faith towards the
insured in the handling of its claim, even though they now are adversaries in the litigation
process.”); see also Spadafore v. Blue Shield, 486 N.E.2d 1201, 1204 (10th Dist. Ohio 1985)
(“[E]vidence of the breach of the insurer’s duty to exercise good faith occurring after the time of
filing suit is relevant so long as the evidence related to the bad faith or handling or refusal to pay
the claim[.]”). Insurers owe their insured the duty of good faith and fair dealing, which requires
that the insurer timely process and investigate claims to resolve the claims.
Stonebridge Life Ins. Co., No. 2:14-cv-1216, 2016 U.S. Dist. LEXIS 65586, at *3–4 (S.D. Ohio
Feb. 29, 2016) (“[A]n insurer fails to exercise good faith in the processing of a claim of its insured
where its refusal to pay the claim is not predicated upon circumstances that furnish reasonable
justification therefor.”) (quoting Zoppo v. Homestead Ins. Co., 644 N.E.2d 397, 400 (Ohio 1994))
(further citations omitted).
It is undisputed that CIC originally engaged RSI to prepare cost estimates in order to
process CSX’s insurance claim. (Doc. 268 at 4). CIC processes insurance claims in its ordinary
course of business. CIC produced all cost estimates completed by RSI prior to the commencement
of this litigation. (Id.). CIC has failed to put forth any evidence showing that its relationship with
RSI, Mr. Wolfe, or Mr. Tooley changed in any way after the commencement of litigation. There
is no evidence that the cost estimates created after litigation commenced are different in any way
than the pre-litigation estimates that have been produced. Even if CIC anticipated litigation on the
day the complaint was filed, it does not necessarily follow that RSI and its affiliates immediately
became experts engaged in anticipation of litigation. The facts show that RSI, Mr. Wolfe, and Mr.
Tooley were engaged by CIC to generate cost estimates for an ordinary business purpose and CIC
has failed to identify any facts proving anticipated litigation was in fact the driving force.
Moreover, even if the cost estimates were work product, the Court concludes that they
would be discoverable under Rule 26(b)(3)(A).
That rule allows materials shielded by
work-product privilege to be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1);
and (ii) the party shows that is 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(b)(3)(A). First, CIC has not argued that the cost estimates are not relevant to the claims or
defenses or disproportional to the needs to this case. Second, Plaintiffs cannot obtain their
substantial equivalent. For Plaintiffs’ bad faith claims, the relevance of the cost estimates is the
information CIC relied upon in making or failing to make a coverage determination. A cost
estimate performed by a different expert retained by Plaintiffs cannot serve as a substitute. As
such, if the cost estimates were privileged, the exception would apply, and CIC would still have to
produce them. Accordingly, the Plaintiffs’ motion to compel the cost estimates prepared by RSI
is GRANTED and CIC is ORDERED to produce any responsive documents within five days of
the entry of this order.
2. Aaron Tooley and Jason Wolfe and Deposition Testimony
In the next dispute, CIC argues attorney-expert privilege protects certain testimony of Mr.
Tooley and Mr. Wolfe. CIC relies on Rule 26(b)(4)(C) for its assertion that “Rules 26(b)(3)(A)
and (B) protect communications between the party’s attorney and any witness required to provide
a report under 26(a)(2)(B), regardless of the form of the communications . . . .” Fed. R. Civ P.
26(b)(4)(C). Again, for material to be protected by Rule 26(b)(3)(A), it must have been “prepared
in anticipation of litigation.” As CIC has not established that the reports themselves were produced
in anticipation of litigation, it cannot establish that Mr. Tooley and Mr. Wolfe were engaged to
prepare the reports in anticipation of litigation. What is more, the deponents themselves answered
that they were not serving as experts. (Doc. 244-4 at 7; Doc. 244-5 at 3–4). No privilege protects
the deposition testimony of Mr. Tooley and Mr. Wolfe, and CIC improperly instructed these
deponents not to answer certain questions.
Mr. Tooley’s testimony regarding his deposition preparation with counsel for CIC is
therefore discoverable. Similarly, Mr. Wolfe’s testimony regarding his deposition preparation is
also discoverable. In Mr. Wolfe’s deposition, counsel for CIC also objected to numerous questions
regarding the information upon which he relied to create the cost estimates. (See Doc. 244-5).
The Court notes that, even if he were an expert retained to prepare a report in anticipation of
litigation, these questions would be fair game. The Court can think of no basis for objecting to
this line of questioning, and indeed CIC’s counsel fails to provide any. (See id.). If these questions,
that regard documents relied upon in creating the cost estimates, were determined to be work
product, they would fall into the exception for communications that “identify facts or data that the
party’s attorney provided and that the expert considered in forming the opinions to be expressed.”
Fed. R. Civ. P. 26(b)(4)(C)(ii). Accordingly, Plaintiffs’ motion to compel deposition testimony
from Aaron Tooley and Jason Wolfe is GRANTED.
Plaintiffs further move for the depositions of Tooley and Wolfe to be compelled at the
expense of CIC. “A court has discretion in determining an appropriate sanction under Rule 37.”
Harris v. Sowers, 2:16-cv-888, 2019 U.S. Dist. LEXIS 30889, at *6 (S.D. Ohio Feb. 27, 2019).
Due to Plaintiffs’ questionable meet and confer tactics, their request to compel the depositions of
Tooley and Wolfe at CIC’s expense is DENIED. Cf. Fed. R. Civ. P. 37(a)(5)(i) (“[T]he court must
not order this payment if: (ii) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action[.]”).
E. Dispute 10 (Supplementation of Interrogatory No. 29)
Plaintiffs seek to compel Supplementation of Plaintiffs’ Interrogatory No. 29. The parties’
status report following the order to meet and confer (Doc. 231) reads as follows:
Plaintiffs’ Interrogatory No. 29 requested that CIC identify which individuals
identified by CIC in response to Interrogatory No. 27 (relating to Plaintiffs’ claims)
also worked on the Messer claim. CIC argues that it cannot provide that information
without reviewing the Messer claim file. CIC asserts that the representatives within
CIC that are addressing the claims filed by Plaintiffs against CIC are not the claim
representatives that are handling the claim brought against Messer. These are
separate people and there are separate claim files for the separate claims. While
CIC has the information in its corporate records, its position is that the requested
information is not immediately available to the CIC representatives handling the
defense of the claims Plaintiffs have asserted against CIC. CIC claims that
reviewing the Messer claims file without an order from the Court might be argued
to further the alleged bad faith claim asserted by Plaintiffs. Plaintiffs’ position is
that CIC has the responsive information in its possession, custody, or control but is
refusing to produce it. As such, the parties are at an impasse which cannot be
resolved without judicial intervention.
The Court finds that the supplementation of Plaintiffs’ Interrogatory No. 29 is relevant to
Plaintiffs’ bad faith claims. See Fed. R. Civ. P. 26(b)(1) (“[p]arties 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.”).
Accordingly, the Motion is GRANTED with regard to Dispute 10,
supplementation of Interrogatory No. 29. and CIC is ORDERED to supplement within seven days
of the entry of this order.
F. Deposition Testimony of David Cunningham
David Cunningham was the CIC claim representative that originally handled the property
loss claim submitted by CSX. (Doc. 258 at 14). At the same time, Mr. Cunningham was handling
the third-party liability claim alleged against Messer Construction Co.—a named defendant in this
lawsuit—related to the same project. (Id. at 15). At some point after CSX reported the settlement
of the bridge to Messer and various other parties, Jane Lynch of Green & Green was hired as
Messer’s legal counsel to defend against CSX’s claim. (Id.). Mr. Cunningham’s focus was to
determine the scope and amount of damages sustained by CSX, and he did not believe a conflict
existed in his handling of the Messer claim until he determined there might be an issue with the
cause of the bridge settlement. (Id. at 14–15). Upon this realization in January 2019, Mr.
Cunningham transferred the CSX file to a new claim representative. (Id. at 15). But before he
transferred the CSX file, Mr. Cunningham had conversations with Attorney Lynch.
Plaintiffs now move to compel Mr. Cunningham’s testimony regarding the substance of those
conversations with Attorney Lynch. (Doc. 244-1 at 7–8).
Messer asserts that attorney-client privilege protects the conversations between Mr.
Cunningham and Attorney Lynch. (Doc. 255). Plaintiffs argue the Boone exception applies
because “no such privilege exists with respects to documents or information that may cast light on
CIC’s bad faith handling of Plaintiffs’ claims.” (Doc. 244-1 at 7). The substance of Mr.
Cunningham’s conversations with Attorney Lynch, however, cannot cast light on CIC’s bad faith
handling of Plaintiffs’ claims because Plaintiffs were never discussed.
Mr. Cunningham testified that his conversations with Attorney Lynch related to the Messer
claim and that none of his conversations with Attorney Lynch related to the CSX claim. 1 (Doc.
258-4 at 3). Specifically, Mr. Cunningham stated the following: “My conversations with Jane did
not bring in the railroad protective policy.” (Id.). He went on to say that “any conversations with
Green & Green was regarding finding out who the parties were downstream that may have
culpability in this case.” (Id. at 5–6). Further, Mr. Cunningham agreed that his conversations with
Attorney Lynch did not concern anything other than the third-party liability claim against Messer.
Messer submitted a Memorandum in Opposition to Plaintiffs’ instant Motion to Compel
Additional Deposition Testimony from Mr. Cunningham. (Doc. 255). This briefing, signed by
Attorney Lynch, cites to Mr. Cunningham’s testimony “that his conversations with counsel for
Messer related solely to Messer’s third-party liability claim and he never had any discussions
whatsoever with counsel for Messer regarding Plaintiffs’ first party damages claim.” (Doc. 255 at
2). Under Rule 11(b)(3) of the Federal Rules of Civil Procedure, by signing the motion, Attorney
Lynch represents to the Court that the factual contentions have evidentiary support. Further,
Attorney Lynch has an ethical duty of candor with the Court. If Attorney Lynch did have
conversations with Mr. Cunningham regarding Plaintiffs before the CSX file was transferred, she
would not have signed the memorandum in opposition.
Communications between an insurance company and counsel retained by the company to
defend an insured are privileged and not subject to disclosure in discovery. See Kerner v. Terminix
Int’l Co., No. 2:40-cv-0735, 2008 US. Dist. LEXIS 107022, at *7–9 (S.D. Ohio Jan. 31, 2008).
During the time that Mr. Cunningham was working on these claims, Plaintiff Norfolk Southern had not yet
submitted a claim with CIC. (Doc. 258 at 14).
Communications between Mr. Cunningham and Attorney Lynch related to Messer’s third-party
claim, meaning they were legal advice, sought from an attorney in her capacity as such, relating to
representation made in confidence, and the privilege is being asserted by Messer. The Reed
factors, therefore, are satisfied. See Reed, 134 F.3d at 356.
Under the facts of this dispute, the Court need not reach the question of whether the Boone
exception to attorney-client privilege applies in this circumstance.
If Mr. Cunningham’s
conversations with Messer’s counsel did not mention Plaintiffs and related solely to Messer’s
third-party liability claim, then these conversations could not be evidence of CIC’s bad faith
processing of Plaintiffs’ claims. The Motion to Compel Additional Deposition Testimony from
Mr. Cunningham is therefore DENIED.
The Court’s Order is summarized as follows:
The Motion is DENIED as to dispute 1.
The Motion is GRANTED as to disputes 2 and 3.
The Motion is GRANTED as to disputes 5 and 12.
The Motion is DENIED as to disputes 6 and 7.
The Motion is GRANTED as to dispute 8.
The Motion is GRANTED as to dispute 9 and compelling the deposition testimony of
Aaron Tooley and Jason Wolfe.
The Motion is GRANTED as to supplementation of Interrogatory 29.
The Motion is DENIED as to compelling the deposition testimony of David Cunningham.
Unless stated otherwise, CIC is granted seven days to supplement its production with regard to the
disputes in which this Opinion and Order compels production.
IT IS SO ORDERED.
Date: April 5, 2019
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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