Annese v. US Xpress Inc et al
Filing
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ORDER granting in part and denying in part 30 Plaintiff's Motion for Order Compelling Discovery. Signed by Honorable Robin J. Cauthron on 07/18/18. (wh)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREA T. ANNESE,
Plaintiff,
vs.
U.S. XPRESS, INC. and
GLENN ANDERS,
Defendant.
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No. 17-CV-655-C
MEMORANDUM OPINION AND ORDER
Now before the Court is Plaintiff’s Motion for Order Compelling Discovery (Dkt.
No. 30). Defendant U.S. Xpress, Inc. filed a Response to Plaintiff’s Motion for Order
Compelling Discovery (Dkt. No. 58). The motion is now at issue.
I. Standard
Federal district courts enjoy broad discretion over discovery measures. Rule 26
governs the scope of discovery and its proper scope encompasses “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). “[T]he requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be discoverable.” Holick v. Burkhart,
No. 16-1188-JTM-KGG, 2017 WL 3723277 at *3 (D. Kan. August 29, 2017).
A. Work Product Doctrine
“In federal courts, work product issues are governed, even in diversity cases, by a
uniform federal standard embodied in Rule 26(b)(3).” Sinclair Oil Corp. v. Texaco, Inc.,
208 F.R.D. 329, 333 (N.D. Okla. 2002). “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.)” Fed R. Civ. P. 26(b)(3)(A).
B. Attorney-Client Privilege
Attorney-client privilege is governed by Fed. R. Evid. 501. “Rule 501 of the Federal
Rules of Evidence provides that state law supplies the rule of decision on privilege in
diversity cases.” Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 ().
Oklahoma’s privilege statute, in part, provides:
B. A client has a privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made for the purpose of facilitating
the rendition of professional legal services to the client:
1. Between the client or a representative of the client and the client's
attorney or a representative of the attorney;
2. Between the attorney and a representative of the attorney;
3. By the client or a representative of the client or the client's attorney or a
representative of the attorney to an attorney or a representative of an
attorney representing another party in a pending action and concerning a
matter of common interest therein;
4. Between representatives of the client or between the client and a
representative of the client; or
5. Among attorneys and their representatives representing the same client.
12 Okla. Stat. § 2502.
II. Discussion
A. Privilege Log
Defendant has responded to Plaintiff’s request and this Court finds this portion of
Plaintiff’s Motion is stricken as moot.
B. Interrogatory No. 16
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Defendant has responded to Plaintiff’s request and this Court finds this portion of
Plaintiff’s Motion is stricken as moot.
C. Request for Production 13
Defendant has responded to Plaintiff’s request and this Court finds this portion of
Plaintiff’s Motion is stricken as moot.
D. Request for Production 16
Defendant has responded to Plaintiff’s request and this Court finds this portion of
Plaintiff’s Motion is stricken as moot. 1
E. Interrogatory No. 27
i. Claim Comments
Plaintiff requests Defendant “to produce any and all records related to any internal
investigation conducted by U.S. Xpress, Inc.” (Pl.’s Mot., Dkt. No. 30, p. 3). Defendant
responded to Plaintiff’s Interrogatory No. 27 by objecting based on both attorney client
privilege and work-product doctrine. (Def.’s Resp., Dkt. No. 58, p. 4). Defendant states
that it “has withheld from production, on the basis of work-product and/or attorney-client
privilege, only twenty-one (21) pages of written “Claim Comments” dated from March 9,
2016 through December 29, 2016 . . . they contain information about the investigation,
reserve information and liability assessments. These notes were created by in-house
claims examiners, managers and an attorney.” (Def.’s Resp., Dkt. No. 58, p. 4).
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Plaintiff did not file a Reply responding to Defendants assertions that certain discovery
requests were now moot. This Court finds that Defendant, in the instances addressed in
this Memorandum and Opinion Order, has satisfied Plaintiff’s discovery requests.
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In this instance, defendants “bear the burden of proving the existence of a
privilege.” Oneok, Inc. v. National Union Fire Ins. Co., No. 06-CV-200 GKF-SAJ, 2007
WL 2891519 at *1 (N.D. Okla. Sept. 28, 2007). “[I]n a diversity case such as this
attorney-client privilege issues are controlled by applicable state law while questions of
work-product protection are controlled by federal law.” Accounting Principals, Inc. v.
Manpower, Inc., No. 07-CV-636-TCK-PJC, 2009 WL 2252123 at *2 (N.D. Okla July 28,
2009).
Defendant argues that the “Claim Comments, generally, were prepared in
anticipation of litigation and are thus not discoverable.” (Def.’s Resp., Dkt. No. 58, p. 6).
“In order for the work-product doctrine to apply, “the material must (1) be a document or
tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by
or for a party, or by or for his representative.” Wells Fargo Bank, N.A. v. LaSalle Bank
Nat. Ass’n, 2010 WL 2594828 at *5 (quoting Retail Brand Alliance, Inc. v. Factory Mut.
Ins. Co., No. 2008 WL 622810 at *3. Here, the dispute is over a tangible document that
Defendant began to prepare after the accident on March 9, 2016 for its employee, Glenn
Anders. This Court finds that the portion of the Claim Comments prepared in
anticipation of litigation are not discoverable.
Defendant also argues that “[t]he Claim Comments contain, among other things,
communications between U.S. Xpress claims personnel and driver Anders. The claims
personnel have authority to obtain legal services upon behalf of U.S. Xpress.” (Def.’s
Resp., Dkt. No. 58, p. 7). “[W]ith respect to each document Defendant must show (1) a
confidential communication; (2) between privileged persons; (3) made to assist in
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securing legal advice or assistance for the client.” Accounting Principals, Inc., 2009 WL
2252123 at *3. Here, there is a confidential communication made to obtain legal advice
and assistance for the client. As a result, these portions of the Claim Comments
documents fall under the attorney-client privilege and are not discoverable.
Finally, Defendant notes that these 21 documents are available for the court’s in
camera review. (Def.’s Resp., Dkt. No. 58, p. 4). “The decision whether to review
[documents] in camera is within the discretion of the trial court.” In re Grand Jury
Subpoenas, 906 F.2d 1485, 1493 (10th Cir. 1990). This Court finds that it is not
necessary to make an in camera inspection.
ii. Reserve Information
This Court will turn to the issue of the reserve information present in Interrogatory
No. 27. “Internal reserves established by an insurance company are an estimate of
potential liability in connection with a claim. They do not represent the insurer’s
judgment as to what a plaintiff should recover.” LeBlanc v. Travelers Home and Marine
Ins. Co., No. Civ–19–00503–HE, 2011 WL 2748616 at *4 (W.D. Okla. July 13, 2011).
Defendant argues that “any probative value of such evidence is substantially outweighed
by its prejudicial aspects.” (Def.’s Resp., Dkt. No. 58, p. 8). Plaintiff argues that “[t]he
facts are of consequence in determining the action, because Defendants have denied
liability for Plaintiffs’ injuries and have affirmatively defended on the grounds of
contributory negligence.” (Pl.’s Mot., Dkt. No. 30, p. 4).
Defendant cites Signature Development Company v. Royal Insurance Company of
America, 230 F.3d 1215, 1224 (10th Cir. 2000) for the proposition that reserves were not
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evidence of liability because the insurer’s reserve “is merely an amount it set aside to
cover potential future liabilities.” Id. This Court finds Defendant’s argument persuasive
and the reserve information is irrelevant to the issues involved in this case. As a result,
this Court concludes that Defendant should not be compelled to produce the portion of
the Claim Comments that contain reserve information.
F. Expenses and Attorney’s Fees
All parties will be responsible for their own costs. Plaintiff’s motion, even though
partially mooted, was substantially justified due to the length of time Plaintiff waited for
responses from Defendant before filing her motion.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Order Compelling Discovery
(Dkt. No. 30) is GRANTED in part and DENIED in part.
IT IS SO ORDERED this 18th day of July, 2018.
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