Cactus Drilling Company LLC v. National Union Fire Insurance Company of Pittsburgh Pa et al

Filing 267

ORDER granting 227 plaintiff's motion for clarification of the Court's October 3, 2013 order and to compel, and request for expedited ruling (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 1/30/2014. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CACTUS DRILLING COMPANY, LLC,

)
)
Plaintiff,
)
)
v.
)
)
NATIONAL UNION FIRE INSURANCE )
COMPANY OF PITTSBURGH, PA and
)
CHARTIS CLAIMS, INC.,
)
)
Defendants.
)

Case No. CIV-12-00191-M

ORDER
On November 27, 2013, Cactus Drilling Company, LLC (“Cactus”) filed Plaintiff’s
Motion for Clarification of the Court’s October 3, 2013 Order and To Compel, and Request for
Expedited Ruling, and Brief in Support (“Motion to Compel”). On December 09, 2013,
defendants filed their response, and on December 11, 2013, Cactus filed its reply. On December
31, 2013, the Court issued an order granting in part and denying in part Cactus’ motion. In that
order, the Court also instructed the parties to provide a status update on the discovery issues
raised in Cactus’ motion. On January 13, 2014, the parties filed a Joint Status Report. In their
report, the parties advise the Court that they only need instruction on discovery issues regarding
Melissa Valerio’s hard copy Cactus files and the production of documents relating to “Man v.
Steel” case. Based upon the parties’ submissions, the Court makes its determination.
I.

Discussion
Generally, A[p]arties may obtain discovery regarding any nonprivileged matter that is

relevant to any party=s claim or defense . . . .@ Fed. R. Civ. P. 26(b)(1). If a party withholds
otherwise discoverable documents claiming privilege, the asserting party bears the burden of
establishing the existence of the privilege and must make a clear showing that the privilege

applies. Metzger v. Am. Fid. Assur. Co., No. CIV-05-1387-M, 2007 WL 3274922, at *1 (W.D.
Okla. Oct. 23, 2007) (citations omitted). If a party contends that the asserting party has waived
the privilege,
[t]hree factors are consistently applied by the courts in evaluating whether or not a
party has waived an otherwise applicable privilege through some affirmative act.
1. Whether the assertion of the privilege is the result of some affirmative act, such
as filing suit or asserting an affirmative defense, by the asserting party.
2. Whether the asserting party, through the affirmative act, put the protected
information at issue by making it relevant to the case.
3. If the privilege was applied, would it deny the opposing party access to
information that was vital to the opposing parties defense.
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 199 F.R.D. 677, 681 (N.D. Okla.
2001).
Cactus moves the Court to compel defendants to produce documents relating to the
circumstances of the destruction of Melissa Valerio’s (“Valerio”) hard copy Cactus file, which
defendants assert was accidently discarded in March or April of 2013 when Valerio’s office was
cleaned out upon her departure from the company. Specifically, Cactus seeks documents
pertaining to defendants’ document retention and litigation hold practices and policies, seeks to
depose a witness with knowledge of what was done with Valerio’s hard copy Cactus file, and
seeks to depose a witness on defendants’ document retention and litigation hold practices and
policies, and whether they were followed as it pertains to Valerio.
Having carefully reviewed the parties’ submissions, the Court finds that defendants
should be compelled to produce documents pertaining to their document retention and litigation
hold practices and policies, produce a witness for deposition regarding what was done with
Valerio’s hard copy Cactus file, and further produce a witness on their document retention and
litigation hold practices and policies, and whether such policies were followed in regards to
Valerio’s hard copy Cactus file.
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Cactus also moves the Court to compel defendants to produce documents relating to the
Man v. Steel case/claim. Cactus contends that Jeannette Paull (“Paull”) waived any claim of
privilege with respect to this request when she revealed the content of the coverage opinion in an
e-mail to Charles Weber (“Weber”). In response, defendants object that this matter is privileged,
and Paull did not cite or rely on the advice of counsel as any basis for denial of Cactus’ claim.
Based on this lack of reliance, defendants assert that Paull did not waive any privilege as Paull
did not put any privileged material at issue.
Having reviewed the parties’ submissions, the Court finds that defendants should be
compelled to produce documents relating to the Man v Steel case/claim. Specifically, reviewing
the content of Paull’s email to Weber, contrary to defendant’s assertions, the Court finds that
Paull placed an otherwise privileged material at issue. See Mot. to Comp, Ex. 3 [docket no. 227].
Accordingly, the Court finds that defendants should be compelled to produce the original
coverage opinion, the draft denial letter, and any amendments to the coverage opinion or denial
letter in the Man v. Steel case.
II.

Conclusion
Accordingly, the Court GRANTS Plaintiff’s Motion for Clarification of the Court’s

October 3, 2013 Order and To Compel, and Request for Expedited Ruling [docket no. 227], and
Brief in Support as set forth above.
IT IS SO ORDERED this

30th

day of January, 2014.

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