Taylor v. Pilot Travel Centers, LLC
Filing
35
ORDER granting in part and denying in part 14 MOTION to Compel filed by Helen Taylor. Signed by Chief Judge Karen E. Schreier on 5/12/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DAVID BLACK, as Special
Administrator of the Estate of
George Taylor, deceased,
Plaintiff,
vs.
PILOT TRAVEL CENTERS, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CIV. 09-4170-KES
ORDER
Plaintiff, Helen Taylor as special administrator of the estate of George
Taylor, brought a wrongful death suit against defendant, Pilot Travel
Centers, LLC, alleging that Pilot negligently maintained its parking lot and,
as a result, caused George’s death after he was struck and killed by a hitand-run driver in Pilot’s parking lot. During this action, Helen passed away
and David Black was appointed as special administrator of George’s estate
and substituted as the plaintiff in this action. The parties are now in the
discovery stage of litigation. Black brought a motion to compel certain
discovery from Pilot relating to a similar incident involving Gregory Zuba
that occurred around November 16, 2005, where a hit-and-run driver
struck and killed Zuba in Pilot’s parking lot. The court deferred ruling on
the motion until it conducted an in camera review of the documents that
Pilot claimed were protected by the attorney-client privilege or the work
product doctrine. Docket 28. The court has conducted the in camera review
and now grants in part and denies in part Black’s motion to compel.
DISCUSSION
Document 1 is email correspondence dated December 16, 2009,
between attorney Sandra Hogland Hanson and Stephen Blair, a risk
management supervisor at Pilot. Pilot asserts that this document is
protected by the attorney-client privilege.
State law supplies the rules of decision for attorney-client privilege in
diversity cases. Fed. R. Evid. 501. Because this is a diversity case and
South Dakota law is the governing substantive law, South Dakota law also
supplies the law on privilege.
The party claiming a privilege has the burden to establish that the
privilege exists. Dakota, MN & E. R.R. Corp. v. Acuity, 771 N.W.2d 623, 637
(S.D. 2009) (citing State v. Catch the Bear, 352 N.W.2d 640, 645 (S.D.
1984)). The attorney-client privilege protects from disclosure “confidential
communications made for the purpose of facilitating the rendition of
professional legal services to the client . . . .” SDCL 19-13-3. There are four
minimum elements necessary to invoke the attorney-client privilege: “(1) a
client; (2) a confidential communication; (3) the communication was made
for the purpose of facilitating the rendition of professional legal services; and
2
(4) the communication was made in one of the five relationships enumerated
in SDCL 19-13-3.” Catch the Bear, 352 N.W.2d at 645.
A client is a person who or entity that “is rendered professional legal
services by a lawyer, or who consults a lawyer with a view to obtaining
professional legal services . . . .” SDCL 19-13-2(1). Blair, a Pilot
representative and contact person for this litigation, is a client because he
received legal services from Hanson in the letter dated December 16, 2009.
Document 1 is a confidential communication between Blair and Hanson and
was intended to facilitate the rendition of legal services. All four elements
are met, and, thus, the attorney-client privilege protects document 1 from
disclosure to Black.
Document 2 is a letter dated December 9, 2009, from Hanson to Blair.
Because this is a communication between an attorney and her client
containing legal advice, the attorney-client privilege protects against the
disclosure of document 2.
The remaining documents, except documents 9 and 11 that contain
handwritten notes, concern reports, photos, newspaper articles,
correspondence, and invoices from Doss & Associates Claims Services and
Liberty Mutual Insurance Company to Pilot concerning investigations into
and insurance claims regarding Zuba’s death. Pilot contends that these
3
documents are protected by the work product doctrine and the attorneyclient privilege.
Federal law applies in a diversity case where a party asserts the work
product doctrine. Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir.
2000) (citing Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir. 1987)). The
federal rules provide that “[o]rdinarily, a party may not discover documents
and tangible things that are prepared in anticipation of litigation 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). The Eighth Circuit distinguishes between documents produced
in the ordinary course of business and in anticipation of litigation:
[T]he test should be whether, in light of the nature of the
document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained
because of the prospect of litigation. But the converse of this is
that even though litigation is already in prospect, there is no
work product immunity for documents prepared in the regular
course of business rather than for purposes of litigation.
Simon, 816 F.2d at 400 (citing 8C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2024 (1970)); see also 8 Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2024 (4th ed. 2010) (“The focus is on whether specific materials
were prepared in the ordinary course of business, or were principally
promoted by the prospect of litigation.”).
4
A document is produced in anticipation of litigation if there is a threat
of an adversary proceeding and the document was produced after that
threat became palpable. Helt v. Metro. Dist. Comm’n, 113 F.R.D. 7, 12 (D.
Conn. 1986) (“To qualify, the documents must have been prepared ‘any time
after initiation of the proceeding or such earlier time as the party who
normally would initiate the proceeding had tentatively formulated a claim,
demand or charge.’ ” (quoting United States v. AT&T, 86 F.R.D. 603, 627
(D.D.C. 1979)). The threat of litigation must be a specific threat. See
Resident Advisory Bd. v. Rizzo, 97 F.R.D. 749, 754 (E.D. Pa. 1983)
(reasoning that the work product doctrine “is not applicable unless some
specific litigation is fairly foreseeable at the time the work product is
prepared.”); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 143 (D. Del.
1982) (“[L]itigation must be at least a real possibility at the time of
preparation or, in other words, the documents must be prepared with an
eye to some specific litigation.” (citing In re Grand Jury Investigation, 599
F.2d 1224, 1229 (3d Cir. 1979))). The party resisting discovery bears the
burden to prove that the work product doctrine protects the material
sought. Rabushka ex rel United States v. Crane Co., 122 F.3d 559, 565 (8th
Cir. 1997).
There are two kinds of attorney work product: ordinary and opinion
work product. Baker, 209 F.3d at 1054. “Ordinary work product includes
5
raw factual information.” Id. (citing Gundacker v. Unisys Corp., 151 F.3d
842, 848 n.4 (8th Cir. 1998)). “Opinion work product includes counsel’s
mental impressions, conclusions, opinions or legal theories.” Id. (citing
Gundacker, 151 F.3d at 848 n.5). “Ordinary work product is not
discoverable unless the party seeking the discovery has a substantial need
for the materials” and “cannot obtain the substantial equivalent” of the
requested discovery. Id. (citing Fed. R. Civ. P. 26(b)(3)). “[O]pinion work
product enjoys almost absolute immunity . . . .” Id.
The documents were prepared by an insurance adjuster for Pilot. Pilot
asserts no facts that litigation surrounding the incident leading to Zuba’s
death was anticipated or imminent at the time the documents were
prepared. Instead, Pilot cites to case law, particularly Ashmead v. Harris,
336 N.W.2d 197 (Iowa 1983), and argues that documents produced in an
investigation by an insurance adjuster are assumed to be completed in
anticipation of litigation.
But Ashmead is no longer good law, see docket 28 at 7, and “[c]ourts
in the District of South Dakota have set forth the general rule that
investigative materials assembled by insurance companies are not protected
by the work product privilege.” Lamar Adver. of S.D., Inc. v. Kay, 267 F.R.D.
568, 577 (D.S.D. 2010) (citations omitted). Other courts have held that
routine investigatory documents prepared by insurance company
6
representatives are not work product unless they are prepared for a specific
event with a real possibility of becoming an actual adversary proceeding.
See, e.g., Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.
1982) (reasoning that “[a] more or less routine investigation . . . is not
sufficient to immunize an investigative report developed in the ordinary
course of business” under the work product doctrine); DeGiacomo v.
Morrison, No. Civ. 02-310-M, 2003 WL 22871701, at *1 (D.N.H. Dec. 4,
2003) (reasoning that when documents are prepared by an adjuster without
an attorney’s assistance, courts have found that the result is ordinary work
product, not opinion work product (citing In re San Juan Dupont Plaza, 859
F.2d 1007, 1014 (1st Cir. 1988))); Reavis v. Metro. Prop. & Liab. Ins. Co., 117
F.R.D. 160, 164 (S.D. Cal. 1987) (permitting discovery of an insurance
adjuster's opinion work product).
Here, the documents concern an investigation by Doss & Associates
and a claims process involving Liberty Mutual relating to Zuba’s death. The
documents appear to have been compiled in the ordinary course of business
after an accident occurred on Pilot’s property because the documents do not
reference any pending litigation, threat of litigation, or potential liability for
Pilot as a result of Zuba’s accident. Pilot also makes no specific argument
regarding how the documents were prepared in anticipation of litigation.
7
Thus, Pilot has not met its burden to prove that the documents were
prepared in anticipation of litigation.1
Pilot also asserts the attorney-client privilege for document 3, a
general claims executive summary from November 11, 2005, through
July 13, 2006. The document involves Pilot, a client, and appears to be
confidential, so elements one and two of the attorney-client privilege test are
met. See SDCL 19-13-3; Catch the Bear, 352 N.W.2d at 645. Document 3,
however, does not contain any language suggesting that the insurance
adjuster prepared the executive claims summary to render or facilitate the
rendering of legal services. Furthermore, there is no indication that Pilot
faced a real threat of a lawsuit relating to Zuba’s death. Confidential
communications between a client and his representative are protected by
the attorney-client privilege, SDCL 19-13-3(4), but the representative must
have “authority to obtain professional legal services, or to act on advice
rendered pursuant thereto, on behalf of the client . . . .” SDCL 19-13-2(2).
Pilot does not argue that the insurance adjuster or the insurance firm that
prepared document 3 had the authority to obtain or facilitate in attaining
1
Moreover, in a February 8, 2011, order, this court held that because Pilot
failed to provide the required privilege log when it responded to Black’s
discovery requests, it had waived the ordinary work product doctrine and,
thus, only opinion work product would be protected from disclosure. See
Docket 28 at 8. Because the documents only contain raw factual information
and no attorney opinions, the documents are not opinion work product.
8
professional legal services on Pilot’s behalf. See also Kay, 267 F.R.D. at 575
(holding that the attorney-client privilege did not protect an insurance
company’s investigative materials for an automobile accident). Thus, Pilot
has not sustained its burden in proving that the attorney-client privilege
protects document 3. Thus, documents 3-12, exclusive of 9 and 11, must be
produced to Black.
Document 9 contains copies of South Dakota statutes with
handwritten notes and a summary of South Dakota law dated December 7,
2005. Pilot asserts that document 9 is protected by the work product
doctrine but does not contend that an attorney wrote the notes. Similarly,
document 11 contains two pages of undated handwritten notes, mostly
names and phone numbers. Pilot alleges that document 11 is protected by
the work product doctrine but does not state that an attorney wrote the
notes. Because an attorney’s mental impressions and opinions receive
almost absolute protection and because nondisclosure will not result in
prejudice to Black, the court will assume that the notes in documents 9 and
11 were written by an attorney and, thus, are protected by the opinion work
product doctrine. Documents 9 and 11 will not be disclosed to Black.
Accordingly, it is
9
ORDERED that plaintiff’s motion to compel (Docket 14) is granted in
part as to documents 3, 4, 5, 6, 7, 8, and 10, and denied in part as to
documents 1, 2, 9, and 11.
Dated May 12, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?