Johnsen and Allphin Properties v. First American Title Insurance

Filing 86

MEMORANDUM DECISION AND ORDER- denying 57 Motion to Compel. See order for details. Signed by Magistrate Judge Paul M. Warner on 3/31/2015. (las)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JOHNSEN AND ALLPHIN
PROPERTIES, LLC, a Utah limited
liability company,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
Case No. 2:12-cv-740-RJS-PMW
v.
FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation,
Defendant.

District Judge Robert J. Shelby
Magistrate Judge Paul M. Warner

District Judge Robert J. Shelby referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1

Before the court is Plaintiff Johnson and Allphin

Properties, LLC’s (“Plaintiff”) motion to compel production of non-privileged documents or in
the alternative conduct in camera review of privilege claim.2 The court has carefully reviewed
the extensive written materials submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules
of Practice for the United States District Court for the District of Utah, the court has concluded
that oral argument is not necessary and will determine the motion on the basis of the written
materials. See DUCivR 7-1(f).
1

Docket no. 19.

2

Docket nos. 57 and 69.

BACKGROUND
Plaintiff alleges in the operative complaint that Defendant First American Title Insurance
Company (“Defendant”) improperly handled and denied Plaintiff’s insurance claim.3 Sarah
Frano was Defendant’s Senior Claims Counsel as well as Regional Claims Manager, and
investigated and adjusted Plaintiff’s claim.4 Regardless of Ms. Frano’s titles, the papers show
that Ms. Frano wore different “hats” at different times and that her activities were not solely in a
legal capacity.
In response to Plaintiff’s request for production of documents, Defendant asserted that
hundreds of documents, including Defendant’s insurance “claim file,” were privileged and either
redacted or refused to produce the documents. In April 2014, Defendant served a 35-page
privilege log comprising hundreds of documents; an amended privilege log of similar length was
served in May 2014. For a significant portion of the listed documents, Defendant asserted and
continues to assert privilege on the basis that Ms. Frano is an attorney, regardless of her actual
activities. In both privilege logs, Defendant asserted attorney-client privilege and attorney work
product for virtually every document, including communications between non-lawyers or emails
on which Ms. Frano was one of a dozen recipients.
On June 30, 2014, Plaintiff filed the instant motion to compel production of some portion
of the documents identified in Defendant’s privilege log pursuant to the Short Form Discovery
Motion Procedure.5 On July 8, 2014, Defendant filed its opposition.6 On August 5, 2014,

3

Docket no. 28.

4

Ms. Frano’s declaration states she is Senior Claim Counsel for Defendant. However, Ms. Frano’s email signature
block from the time in question states that she was also Regional Claims Manager. See Docket no. 57-3 at 10.
5

Docket no. 57.

2

Defendant filed its own motion to compel Plaintiff to respond to certain interrogatories, which is
addressed in a separate order.7 Following the filing of Defendant’s short form opposition to the
instant motion, the court ordered further briefing on both motions and set a briefing schedule.8
After obtaining leave to exceed the briefing page limit, Plaintiff filed its full motion on
October 29, 2014. This was followed by Defendant’s 31-page opposition, Plaintiff’s reply,
Plaintiff’s supplemental memorandum in support of the motion, and Defendant’s response to the
supplemental memorandum. The last paper was not filed until February 9, 2015.9 For this
motion alone, Plaintiff’s and Defendant’s filings, inclusive of exhibits, exceed 620 pages—far in
excess of many motions for summary judgment. This is not lost on the court.
ANALYSIS
The court cannot grant Plaintiff’s motion because it is unclear what specific documents
Plaintiff believes should be compelled produced. Plaintiff initially requests that Defendant be
compelled “to produce the documents identified in the Motion,”10 or that the court conduct an in
camera review. Subsequently, Plaintiff requested that the court compel production of “the
documents identified in Plaintiff’s Letters,” apparently referring to the parties’ meet and confer
letters.11 However, neither the motion nor the lengthy attached meet and confer letters specify
what documents are in dispute.

6

Docket no. 59.

7

Docket no. 60.

8

Docket nos. 62 and 64.

9

Docket no. 84.

10

Docket no. 57-6.

11

Docket no. 69 at 16.

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Plaintiff’s motion refers to a “35 page privilege log identifying hundreds of documents
that had been withheld on the basis of privilege,” but the court cannot determine from the
moving papers the precise documents that Plaintiff believes should be produced or reviewed.
The meet and confer letters refer to a few documents and categories of documents, but do not
specifically identify the documents in dispute; the letters also state that the documents discussed
therein are provided by way of example, and are not comprehensive.
Without information regarding the specific documents in dispute, the court cannot assess
Defendant’s basis for claiming privilege or the sufficiency of the privilege log entries, much less
frame an order compelling production. Further, the court does not have the basis, resources, or
inclination for performing an in camera review of all of the documents listed in the privilege log.
Before more ink is spilled, trees are felled, and judicial and client resources are wasted on
any further discovery motions, the court takes this opportunity to remind both parties and their
counsel of some key tenets of the discovery process. The discovery rules are interpreted and
applied liberally to favor discovery.

Discovery is supposed to be an

efficient, self-

executing exchange of relevant information without the involvement of the court so that cases
may be resolved on their merits. The meet and confer process is intended for the parties to
resolve issues—not talk past each other with copy-and-paste boilerplate. To the extent all
disputes cannot be resolved, the meet and confer process should significantly narrow the issues
prior the filing of any motion. Involvement of the court in discovery disputes is a matter of last
resort. Finally, the discovery process is not intended to be a means to play hardball or hide the
ball, or for lawyers to fill billable hour quotas.
In this case, the court also refers both parties to the Utah Supreme Court Rules of
Professional Practice, which “should be followed by all judges and lawyers in all interactions
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with each other and in any proceedings in Utah.” Utah R. Prof. Practice 14-301. Paragraph 17
of rule 14-301 provides:
Lawyers shall not use or oppose discovery for the purpose of harassment or to
burden an opponent with increased litigation expense. Lawyers shall not object to
discovery or inappropriately assert a privilege for the purpose of withholding or
delaying the disclosure of relevant and non-protected information.
The court admonishes both parties for what appears to be overreaching here.

For

example, the court has grave concerns about a good faith legal basis for Defendant’s contention
that “Ms. Frano never takes off her ‘hat’ as a lawyer, regardless of whether she also investigates
claims,” or that the mere inclusion of a lawyer on an email as one of a dozen recipients makes
the email privileged.12 Similarly, Defendant has asserted attorney-client privilege and attorney
work product as to virtually every document in the privilege log, including communications
between non-lawyers or where Ms. Frano was one of numerous recipients. Conversely, Plaintiff
must recognize that Defendant is entitled to obtain legal counsel subject to the protections of the
attorney-client privilege and work product doctrine, particularly from outside counsel such as
Mr. Cobb. Plaintiff must also determine which specific claims of privilege Plaintiff has a good
faith basis for disputing and which specific documents are actually necessary, particularly now
that Plaintiff has deposed Ms. Frano.
Had the lawyers spent as much effort resolving and narrowing disputed issues as they did
on meet and confer broadsides and the moving papers, the court believes the issues would have
been resolved long ago and at a considerable savings to their respective clients.
The court trusts that both parties will take these tenets and admonitions very seriously in
further discussions between counsel and before further involving the court.
12

Docket no. 84 at 4.

5

For the foregoing reasons, Plaintiff’s motion is DENIED without prejudice. Rule 37
provides for the imposition of sanctions when a motion to compel is denied. Fed. R. Civ. P.
37(a). For purposes of Rule 37, the court cannot say that portions of Plaintiff’s motion were not
substantially justified. See Fed. R. Civ. P. 37(a)(5)(B). Further, the court is not persuaded that an
award to Defendant is justified under the circumstances presented here.
The court will not leave this case mired in the morass created by unreasonable,
overreaching lawyers. Accordingly, the court orders as follows: The parties have 30 days from
the date of this order to resolve their disputes regarding documents claimed as privileged. If the
parties fail to resolve their disputes in that timeframe, the court will order an in camera review of
all documents listed in the privilege log and educate counsel on the nature and limits of
privilege. Tuition for this education will not come cheap. The court will impose sanctions on
the attorneys for each instance of overreaching—whether for the improper assertion of privilege
or for an improper attempt to obtain privileged documents—and will do so in amounts that
ensure that counsel will not soon forget the lesson.
IT IS SO ORDERED.
DATED this 31st day of March, 2015.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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