Sun Life Assurance Company of Canada v. Wells Fargo Bank, N.A. as Securities

Filing 7

ORDER denying 1 Motion to Quash, Motion for Protection from Subpoena in a civil action. Signed by U.S. District Judge Karen E. Schreier on 12/16/15. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SUN LIFE ASSURANCE COMPANY OF

4:15-MC-116-KES

CANADA,
Plaintiff,
vs.

ORDER DENYING MOTION TO
QUASH SUBPOENA AND MOTION
FOR PROTECTION FROM
SUBPOENA IN CIVIL ACTION

WELLS FARGO BANK, N.A. AS
SECURITIES INTERMEDIARY,
Defendant.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SUN LIFE ASSURANCE COMPANY OF

3:14-CV-05789-PGS-LHG

CANADA,
Plaintiff,
vs.
WELLS FARGO BANK, N.A. AS
SECURITIES INTERMEDIARY,
Defendants.
Plaintiff, Sun Life Assurance Company of Canada, served attorney
Pamela Bollweg with a subpoena on November 18, 2015, seeking documents
relevant to litigation in New Jersey. On November 25, 2015, Bollweg filed a
motion to quash the subpoena and a motion for protection from subpoena in a

civil action. Sun Life urges the court to deny the motions. For the following
reasons, Bollweg’s motions are denied.
BACKGROUND
The subpoena seeks documents from Bollweg stemming from a lawsuit
filed in South Dakota by the Estate of Ms. Nancy Bergman. Nachman Bergman,
Bollweg’s former client, was the former trustee of the N Bergman Insurance
Trust. According to Sun Life, Bollweg may possess documents relating to life
insurance policies issued on the life of Ms. Bergman that are relevant in the
New Jersey lawsuit. The subpoena provides thirteen different requests for
production of documents.
DISCUSSION
Federal Rule of Civil Procedure 45 states that in response to a timely
motion, the court for the district where compliance is required must quash or
modify a subpoena that: (1) fails to allow a reasonable time to comply; (2)
requires a person to comply beyond the geographic limits specified in Rule
45(c); (3) requires disclosure of privileged or other protected matter, if no
exceptions or waiver applies; or (4) subjects a person to undue burden. Fed. R.
Civ. P. 45(d)(3)(A). The mere fact that an attorney possesses documents
provided by his or her client does not render that information privileged or
work product. See Sedco Int’l, S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir.
1982); Lamar Advertising of S.D., Inc., v. Kay, 267 F.R.D. 568, 574 (D.S.D.
2010). When a party withholds otherwise discoverable information by claiming
that the information is privileged or work product, the party must:

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(1) expressly make the claim, and
(2) 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.
Lamar, 267 F.R.D. at 574 (citing Fed. R. Civ. P 26(b)(5)(A)).
In support of her motions, Bollweg argues that Sun Life provided
insufficient time to respond to the subpoena and that the documents requested
are protected by either attorney-client privilege or the work product doctrine.
Considering the forthcoming discovery deadline in the New Jersey lawsuit, the
court finds that Sun Life provided reasonable time to comply with the
subpoena. Additionally, Bollweg offers no specifics to support the argument
that the documents sought by Sun Life are protected by attorney-client
privilege or the work-product doctrine. Thus, Bollweg has not met her burden
of establishing facts that support her assertion of privilege or protection from
the work-product doctrine.
Under Rule 26(b)(5)(A), if Bollweg is unable to produce certain documents
due to attorney-client privilege or the work-product doctrine, she should
submit a privilege or work-product log describing the nature of the documents
that she is unable to disclose. Because she has not provided a privilege log, the
court is unable to determine if the documents in fact are privileged. Thus, it is
ORDERED that Bollweg’s motion to quash the subpoena and motion for
protection from subpoena in a civil action (Docket 1) are denied.

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IT IS FURTHER ORDERED that Bollweg must produce all documents
requested in Sun Life’s subpoena that are not protected by attorney-client
privilege or the work-product doctrine by December 21, 2015.
IT IS FURTHER ORDERED that Bollweg must produce a privilege log
detailing the nature of documents that she is unable to produce due to
attorney-client privilege or the work-product doctrine.
Dated December 16, 2015.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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