Rattner v. Chubb National Insurance Company et al

Filing 87

MEMORANDUM OPINION and ORDER denying 58 Motion to Compel. Signed by Magistrate Judge Michael S. Nachmanoff on 5/8/2017. (rban, )

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

SUSAN RATTNER,
Plaintiff,
v.

CHUBB NATIONAL INSURANCE
COMPANY, et al.,
Defendants.

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Civil No. 1:17-cv-00136-GBL-MSN

MEMORANDUM OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Certain Categories of
Documents from Defendant Chubb National Insurance Company (Dkt. No. 58). Plaintiff asks
that the Court compel Defendant to produce documents and information categorized as claim
files, investigation files, and related communications with former Defendants, SBR Law, LLC
and Cynthia Bernstiel. Defendant asserts that the information and documents are protected under
attorney-client privilege and the work product doctrine. For the reasons that follow, Plaintiff’s
Motion is denied.
I.

Background
On November 16, 2015, Plaintiff Susan Rattner, a retired doctor, lost her home in Great

Falls, Virginia, and nearly all of her belongings after a fire. Compl. ¶ 1 (Dkt. No. 1). On
February 1, 2017, Plaintiff filed a complaint against her home insurance company, Defendant
Chubb National Insurance Company, and the law firm and attorney representing the insurance
company, SBR Law, LLC and Cynthia Bernstiel.

Compl. ¶¶ 1, 12-14 (Dkt. No. 1). Plaintiff

amended her complaint on March 10, 2017. See Dkt. No. 26.

Plaintiff alleges that at the time of the fire, she was in compliance with the conditions of
her homeowner’s insurance policy issued by Defendant Chubb. Id. ¶ 2. Plaintiff asserts that
Defendant Chubb failed to conduct a reasonable investigation into the loss. Id. ¶ 6. Instead,
Defendant Chubb allegedly contracted with SBR Law and Ms. Bernstiel to conduct a “targeted
investigation aimed at manufacturing a basis on which to deny [Plaintiff’s] claim.”

Id.

Defendant Chubb insists that it has denied Plaintiff’s claim because “[t]here is substantial
evidence that Plaintiff had both motive and the opportunity to burn down her home to obtain
insurance coverage.” Def.’s Mem. in Supp. 1 (Dkt. No. 47).
On March 24, 2017, SBR Law and Ms. Bernstiel filed a Motion to Dismiss, which the
Court granted on April 24, 2017. See Dkt. Nos. 38, 77. On April 14, 2017, Plaintiff filed the
instant Motion to Compel various categories of information and documents from Defendant
Chubb. See Dkt. Nos. 58, 60. The Court heard oral argument on April 21, 2017, and again on
April 28, 2017, regarding the Motion to Compel, which was taken under advisement with respect
to disputes concerning attorney-client privilege and work product doctrine. See Dkt. Nos. 75, 76,
83, 85. After the Court ordered the parties to meet and confer in an effort to narrow the privilege
issues, the parties did so, and the remaining issues involve 79 items on Defendant’s privilege log.
See Dkt. No. 86-1. Plaintiff disputed the sufficiency of Defendant Chubb’s privilege log. See
Dkt. No. 80. On April 28, 2017, the Court ordered Defendant Chubb to submit a supplemental
privilege log, but this did not resolve the privilege issues. See Dkt. No. 85. The Court further
ordered Plaintiff to identify from Defendant Chubb’s supplemental privilege log ten sample
documents, which Defendant Chubb was ordered to submit for in camera review. See Dkt. No.
85.

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II.

Discussion
Defendant Chubb retained SBR Law, LLC and Ms. Bernstiel to investigate wrongdoing

regarding the cause of the fire. Plaintiff concedes, as it must, that Defendant Chubb would not
be required to disclose information and documents containing Ms. Bernstiel’s legal advice or
opinion in her role as Defendant’s lawyer. See Pl.’s Supplemental Br. 3-4 (Dkt. No. 80).
However, Plaintiff asserts that Defendant Chubb must disclose Ms. Bernstiel’s impressions and
opinions “in her investigatory role” because that information is “exactly the same as what a nonlawyer insurance adjuster” would develop during a claim investigation. Id. Plaintiff states that
“Chubb should not be permitted to shield this factual information from discovery simply because
it is the work product or opinion of a lawyer.” Id.
Plaintiff’s argument is contrary to law.

Information and communications with an

attorney retained to conduct an investigation may still be privileged when the investigation is
“related to the rendition of legal services.” In re Allen, 106 F.3d 582, 603 (4th Cir. 1997)
(citation and internal quotation marks omitted). A lawyer is ethically obligated to be fully
informed of the facts of a case in order to render legal advice. Upjohn Co. v. United States, 449
U.S. 383, 391 (1981) (“The first step in the resolution of any legal problem is ascertaining the
factual background and sifting through the facts with an eye to the legally relevant.”). For that
reason, facts learned by an attorney in the course of an investigation can be privileged. See In re
Allen, 106 F.3d at 603 (noting that in Upjohn Co., the Supreme Court made “clear that fact
finding which pertains to legal advice counts as professional legal services”).
Upon in camera review of the ten sample documents, the Court finds that Defendant
Chubb properly withheld the documents on the basis of attorney-client privilege and the work
product doctrine because Ms. Bernstiel was retained to conduct an investigation using her legal

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expertise. See In re Allen, 106 F.3d at 603 (“Accordingly, we must reject the legal theory
espoused by district court that the attorney-client privilege does not apply here, simply because
Allen’s assigned duties were investigative in nature.”).
III.

Conclusion
For the foregoing reasons, Plaintiff’s Motion is DENIED.
Entered this 8th day of May, 2017.

/s/
Michael S. Nachmanoff
United States Magistrate Judge
Alexandria, Virginia

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