Lear et al v. IDS Property Casualty Insurance Company

Filing 39

ORDER re defendant's 21 Motion for Protective Order by Judge Richard A Jones. (AD)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KYLE LEAR, et al.,
Plaintiffs,

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CASE NO. C14-1040RAJ
[PROPOSED] ORDER

v.
IDS PROPERTY CAUSUALTY
INSURANCE COMPANY,

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Defendant.

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This matter comes before the court on Defendant IDS Property and Casualty
Insurance Company’s (“IDS”) Motion For Protective Order. The court has reviewed each
document in camera and considered IDS’s contentions regarding the applicability of the
work-product doctrine and/or attorney-client privilege.1 The following principles guided
the court’s analysis:
Work-Product Doctrine:
The work-product doctrine protects “from discovery documents and tangible
things prepared by a party or his representative in anticipation of litigation.” Admiral Ins.

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1

Although the court has engaged in an in-camera review in this instance, the court

26 continues to question the applicability of Cedell v. Farmers Ins. Co. of Wash., 176 Wash. 2d 686,
700 (2013) in federal court. Federal law, which governs the procedural aspects of this case, rests

27 the determination of when to conduct an in camera review in the sound discretion of the court.
See MKB Constructors v. Am. Zurich Ins., 2014 WL 2526901 (W.D. Wash. May 27, 2014).
[PROPOSED] ORDER- 1

1 Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989) (citing Fed. R. Civ. P.
2 26(b)(3)). The work-product doctrine covers documents or the compilation of materials
3 prepared by agents of the attorney in preparation for litigation. United States v. Nobles,
4 422 U.S. 225, 238 (1975).
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To qualify for work-product protection, documents must: (1) be “prepared in

6 anticipation of litigation or for trial” and (2) be prepared “by or for another party or by or
7 for that other party’s representative.” In re Grand Jury Subpoena, Mark Torf/Torf Envtl.
8 Mgmt. (Torf), 357 F.3d 900, 907 (9th Cir. 2004). In circumstances where a document
9 serves a dual purpose, that is, where it was not prepared exclusively for litigation, then
10 the “because of” test is used. Id. Dual purpose documents are deemed prepared because
11 of litigation if “in light of the nature of the document and the factual situation in the
12 particular case, the document can be fairly said to have been prepared or obtained
13 because of the prospect of litigation.” Id. In applying the “because of” standard, courts
14 must consider the totality of the circumstances and determine whether the “document was
15 created because of anticipated litigation, and would not have been created in substantially
16 similar form but for the prospect of litigation.’” Id. at 908 (quoting United States v.
17 Adlman, 134 F.3d 1194 (2d Cir. 1998)).
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Attorney-Client Privilege:

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The attorney-client privilege protects confidential communications between

20 attorneys and clients from discovery or public disclosure. RCW 5.60.060(2)(a);
21 Hangartner v. City of Seattle, 151 Wash.2d 439, 452 (2004). Because the privilege
22 “impedes full and free discovery of the truth,” it must be strictly construed. United States
23 v. Gray, 876 F.2d 1411, 1415 (9th Cir. 1989). The attorney-client privilege protects only
24 communications and advice between attorney and client in the context of a professional
25 relationship involving the attorney as an attorney, and not documents prepared for some
26 other purpose. Schmidt v. California State Auto. Ass’n, 127 F.R.D. 182, 183 (D.Nev.
27 1989); Krammerer v. W. Gear Corp., 96 Wash.2d 416, 421 (1981). The burden of

[PROPOSED] ORDER- 2

1 establishing privilege rests upon the party asserting it. VersusLaw, Inc. v. Stoel Rives,
2 LLP, 127 Wash.App. 309, 332 (2005).
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In Washington, “in first party insurance claims by insured’s [sic] claiming bad

4 faith in the handling and processing of claims…there is a presumption of no attorney5 client privilege.” Cedell v. Farmers Ins. Co. of Wash., 176 Wash.2d 686, 700 (2013) (en
6 banc). “In the insurance context, the question of whether a communication falls within
7 the attorney-client privilege can often be a difficult one because of the investigatory
8 nature of the insurance business. The line between what constitutes claim handling and
9 the rendition of legal advice is often more cloudy than crystalline.” HSS Enter., LLC v.
10 AMCO Ins. Co., 2008 WL 163669 (W.D. Wash. Jan. 14, 2008). “Accordingly, to the
11 extent that an attorney acts as a claims adjuster, claims process supervisor, or claims
12 investigation monitor, and not as a legal advisor, the attorney-client privilege does not
13 apply.” Id. at *10. “The public policy reason behind this conclusion is that insurance
14 companies should not be permitted to insulate the factual findings of a claims
15 investigation by the involvement of an attorney to perform, or help perform, such work.”
16 Id. at *10–11.
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Additionally, with respect to attorney time records and expenses, the attorney-

18 client privilege covers those statements to the extent they reveal litigation strategy and
19 the nature of the services provided. In re Grand Jury Witness, 695 F.2d 359, 362 (9th
20 Cir. 1982). “[B]ills, ledgers statements, time records and the like which also reveal the
21 nature of the law, also should fall within the privilege. On the other hand, a simple
22 invoice requesting payment for unspecified services rendered reveals nothing more than
23 the amount of the fee and would not normally be privileged…..” Id.
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Bearing these principles in mind, the court has set forth below its rulings regarding

25 each document IDS withheld as protected. The court understands that IDS is claiming a
26 privilege only with respect to text that is highlighted in yellow. Accordingly, the court
27 expects that IDS will produce all non-highlighted text.

[PROPOSED] ORDER- 3

1 1.

Responsive to Plaintiff’s Request for Production No. 1, Bates No. IDS_000133-

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136.

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IDS Privilege Claim: The corresponding documents are post-litigation notes

4 regarding Uninsured Motorist claim and Bad Faith.

The document is protected by

5 attorney/client privilege.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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 GRANTED IN PART AND DENIED IN PART

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The court finds that IDS has failed to meet its burden with respect to the following

11 entries: 11:34:32 AM; 1:23:51 AM; 10:30:04 PM; 3:54:06 PM; 2:55:57PM; 3:02:54 PM.
12 Those entries shall be produced to plaintiff as set forth at the conclusion of this order.
13 The remainder of the document may be redacted.
14 2.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000137-

15 139.
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IDS Privilege Claim: The corresponding documents and information constitute

17 correspondence between IDS and counsel just before and after receipt of Plaintiffs’
18 Complaint. These documents are privileged communication between client and attorney
19 and were also produced in preparation of and concerning strategy for the litigation already
20 filed by Plaintiffs. Accordingly, the referenced documents are both protected attorney/client
21 communications and also subject to protection under the work product doctrine.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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 GRANTED IN PART AND DENIED IN PART

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The court finds that IDS has failed to meet its burden with respect to the following

27 entries: 10:24:24 PM; 3:22:32 PM; 1:46:35 PM; 12:05;27 PM. Those entries shall be

[PROPOSED] ORDER- 4

1 produced to plaintiff as set forth at the conclusion of this order. The remainder of the
2 document may be redacted.
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Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000140.

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IDS Privilege Claim: The corresponding document is a sequence of file notes

5 created by IDS referencing details concerning payment to counsel, legal advice from
6 counsel concerning Plaintiffs’ arbitration demand, and Plaintiffs’ IFCA complaint. All
7 three subjects entail privileged communication between attorney and client concerning
8 legal services and advice. Accordingly, the corresponding document is protected by the
9 asserted attorney/client privilege.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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 GRANTED IN PART AND DENIED IN PART

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The court finds that IDS has failed to meet its burden with respect to the following

15 entries: 12:05:04 PM; 11:53:19 PM; 1:18:38 PM. Those entries shall be produced to
16 plaintiff as set forth at the conclusion of this order. The remainder of the document may
17 be redacted.
18 4.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000141.

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IDS Privilege Claim: The corresponding document contains a file note created by

20 IDS referencing details concerning payment to counsel.

The subject of said note is

21 protected by attorney/client privilege.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

25 5.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000142.

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IDS Privilege Claim: The corresponding document contains direct email

27 communication between IDS and counsel inquiring as to the status of coverage analysis.

[PROPOSED] ORDER- 5

1 Coverage analysis is legal advice provided by counsel to IDS protected by attorney/client
2 privilege.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000143.

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IDS Privilege Claim: The corresponding document is information regarding Milles v.

8 Lear. The information in this document is not relevant or likely to lead to the discovery of
9 admissible evidence.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

13 7.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000143-

14 144.
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IDS Privilege Claim: The corresponding documents contain direct email

16 communication between IDS and counsel inquiring as to the status of coverage analysis.
17 Coverage analysis is legal advice provided by counsel to IDS and is protected by
18 attorney/client privilege. Defendant will provide to Plaintiffs’ counsel claim note from
19 April 14, 2014, at 4:01 PM on IDS_000144.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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 GRANTED IN PART AND DENIED IN PART

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The court finds that IDS has failed to meet its burden with respect to the following

25 entries: 10:356:15 AM; 10:33:18 PM; 4:41:47 PM; 6:33:42 PM. Those entries shall be
26 produced to plaintiff as set forth at the conclusion of this order. The remainder of the
27 document may be redacted.

[PROPOSED] ORDER- 6

1 8.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000145-

2 146.
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IDS Privilege Claim: The corresponding documents are a sequence of file notes

4 created by IDS in April of 2014 referencing details concerning conversations with third
5 party counsel regarding Plaintiff Kyle Lear’s third party arbitration award. The information
6 in this document is not relevant or likely to lead to the discovery of admissible evidence.
7 Accordingly, the corresponding documents are privilege.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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 GRANTED IN PART AND DENIED IN PART

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The court finds that IDS has failed to meet its burden with respect to the following

13 entries: 6:31:50 PM; 6:16:17 PM; 4:27:36 PM; 4:26:54 PM; 4:25:33 PM; 3:21:30 PM.
14 Those entries shall be produced to plaintiff as set forth at the conclusion of this order.
15 The remainder of the document may be redacted.
16 9.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000147-

17 148.
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IDS Privilege Claim: The corresponding documents are a sequence of file notes

19 created by IDS in March 2014 providing a description of a conversation between IDS and
20 third party counsel regarding details of the arbitration proceedings and Plaintiffs’ counsel’s
21 subsequent demand IDS settle for the amount of the arbitration award in order to avoid
22 preclusion. Plaintiffs had, by this time, filed an IFCA Complaint notice with the Office of
23 the Washington Insurance Commissioner. Plaintiffs’ counsel also gave notice Plaintiffs
24 would file suit for bad faith and enforcement of Kyle Lear’s Uninsured Motorist claim. IDS
25 had reason to believe, therefore, Plaintiffs would file suit. The file notes in question were
26 created in preparation for litigation and therefore qualify as work product and are protected
27 by the work product doctrine. Defendant will provide to Plaintiffs’ counsel claim note from

[PROPOSED] ORDER- 7

1 March 24, 2014, at 12:54 PM on IDS_000147 and claim note from March 19, 2014, at
2 10:35 AM on IDS_000148. The remainder of these documents may remain withheld.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000149.

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Defendant will provide IDS_000149 in its entirety to Plaintiffs’ counsel.

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Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000150.

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IDS Privilege Claim: The corresponding document is a sequence of file notes

10 created by IDS in February of 2014. The specific file note in question details payment by
11 IDS to defense counsel. It is protected by attorney/client privilege and the work production
12 doctrine.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

16 12.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000151-

17 158.
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IDS Privilege Claim: The corresponding documents are a sequence of claim notes

19 created by IDS that reflect and describe medical treatment received by third party plaintiff
20 Troy Milles. Defendant will provide to Plaintiffs’ counsel all claim notes contained in
21 IDS_000151. The documentation contained in IDS_000152-IDS_000158 was withheld
22 upon agreement by the parties as confidential information pursuant to 158CFR§160.
23 Therefore, the documents may remain withheld.
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The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

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 GRANTED IN PART AND DENIED IN PART

[PROPOSED] ORDER- 8

1

The court finds that the following entries are covered by the attorney-client

2 privilege: 4:24:24 PM; 12:04:28 PM. Those entries may be redacted. With respect to the
3 remainder of the document, IDS contends that 158 CFR § 160 protects the entries
4 regarding the medical treatment received by third party plaintiff Troy Milles. The court
5 has reviewed the Code of Federal Regulations several times and believes that no such
6 title or section exists. Accordingly, IDS may submit a two-page supplemental brief in
7 this regard, citing applicable legal authority, on or before June 2, 2016. If IDS fails to
8 submit a supplemental brief, IDS will be required to produce the remainder of this
9 document as set forth at the conclusion of this order.
10 13.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000160-

11 162.
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IDS Privilege Claim: The corresponding documents are file notes created by IDS

13 reflecting communications with counsel concerning settlement and litigation strategies.
14 Accordingly, said documents are protected by both the attorney/client privilege and the
15 work product doctrine. Therefore, the documents may remain withheld.
16

The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

19 14.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000169.

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IDS Privilege Claim: The corresponding document is file notes created by IDS

21 reflecting communications with counsel concerning Plaintiffs’ IFCA Complaint and
22 Uninsured Motorist demand. Receipt of both gave IDS reasonable belief Plaintiffs would
23 file suit. Accordingly, said documents are protected by both the attorney/client privilege
24 and the work product doctrine. Therefore, the documents may remain withheld.
25

The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

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 DENIED

[PROPOSED] ORDER- 9

1

 GRANTED IN PART AND DENIED IN PART

2

The court finds that IDS has failed to meet its burden with respect to the following

3 entries: 11:00:35 AM; 9:37:17 AM. Those entries shall be produced to plaintiff as set
4 forth at the conclusion of this order. The remainder of the document may be redacted.
5 15.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000170.

6

IDS Privilege Claim: The corresponding document is claim notes created by IDS

7 that reflect and describe medical treatment received by third party plaintiff Troy Milles. The
8 documentation was withheld upon agreement by the parties as confidential information
9 pursuant to 158 CFR§160.
10

The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

12

 DENIED

13

 GRANTED IN PART AND DENIED IN PART

14

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

15 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
16 of Federal Regulations several times and believes that no such title or section exists.
17 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
18 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
19 supplemental brief, IDS will be required to produce this document as set forth at the
20 conclusion of this order.
21 16.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000177-

22 180.
23

IDS Privilege Claim: The corresponding documents are file notes created by IDS in

24 December of 2013. These notes reflect analysis, settlement strategy, and reserve setting
25 concerning the disputed Underinsured Motorist claim. It was clear at the time based upon
26 information accumulated through the course of IDS’ claims investigation and
27 correspondence with Plaintiffs’ counsel that litigation was likely with regard the Uninsured

[PROPOSED] ORDER- 10

1 Motorist claim. The corresponding documents are protected by the work product doctrine.
2

The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

4

 DENIED

5

 GRANTED IN PART AND DENIED IN PART

6

The court finds that the following entries are covered by the attorney-client

7 privilege and/or work-product doctrine: 5:03:03 PM; 5:01:35 PM; 3:26:38 PM; 2:05:50
8 PM. Those entries may be redacted. With respect to the remaining entries, IDS claims
9 that they were prepared in anticipation of litigation. However, they appear to be dual
10 purpose documents that would have been created in substantially similar form despite the
11 prospect of litigation. See In re Grand Jury Subpoena, 357 F.3d at 908. Accordingly,
12 IDS will be required to produce the remainder of this document as set forth at the
13 conclusion of this order.
14 17.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000180-

15 183.
16

IDS Privilege Claim: The corresponding documents are file notes created by IDS

17 reflecting communications with counsel concerning settlement strategies and coverage
18 analysis.
19

The Court finds that Defendant’s Motion for Protective Order is hereby:

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 GRANTED

21

 DENIED

22

 GRANTED IN PART AND DENIED IN PART

23

IDS has failed to meet its burden with respect to the first two entries listed on

24 IDS_000180. Those entries lack a time-stamp.
25

The court’s prior ruling with respect to the medical records of Troy Mills applies

26 to the following entries: 11:06:03 AM; 11:01:39 AM.
27

The court finds that the remainder of the document is covered by the attorney-

[PROPOSED] ORDER- 11

1 client privilege and/or work product doctrine. Accordingly, the remaining entries may be
2 redacted.
3 18.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000183.

4

IDS Privilege Claim: The corresponding document is in the form of claim notes

5 created by IDS that reflect and describe medical treatment received by third party plaintiff
6 Troy Milles. The documentation was withheld upon agreement by the parties as confidential
7 information pursuant to 158 CFR§160.
8

The Court finds that Defendant’s Motion for Protective Order is hereby:

9

 GRANTED

10

 DENIED

11

 GRANTED IN PART AND DENIED IN PART

12

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

13 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
14 of Federal Regulations several times and believes that no such title or section exists.
15 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
16 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
17 supplemental brief, IDS will be required to produce this document as set forth at the
18 conclusion of this order.
19 19.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000187.

20

IDS Privilege Claim: The corresponding document is in the form of claim notes

21 created by IDS that reflect and describe medical treatment received by third party plaintiff
22 Troy Milles.

The documentation was withheld upon agreement by the parties as

23 confidential information pursuant to 158 CFR§160.
24

The Court finds that Defendant’s Motion for Protective Order is hereby:

25

 GRANTED

26

 DENIED

27

 GRANTED IN PART AND DENIED IN PART

[PROPOSED] ORDER- 12

1

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

2 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
3 of Federal Regulations several times and believes that no such title or section exists.
4 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
5 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
6 supplemental brief, IDS will be required to produce this document as set forth at the
7 conclusion of this order.
8 20.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000188-

9 191.
10

IDS Privilege Claim: The corresponding documents are in the form of claim notes

11 created by IDS that reflect and describe medical treatment received by third party plaintiff
12 Troy Milles. Defendant will provide to Plaintiffs’ counsel claim note from November 19,
13 2013, at 2:44 PM on IDS_000188. The remaining documentation was withheld upon
14 agreement by the parties as confidential information pursuant to 158 CFR§160.
15

The Court finds that Defendant’s Motion for Protective Order is hereby:

16

 GRANTED

17

 DENIED

18

 GRANTED IN PART AND DENIED IN PART

19

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

20 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
21 of Federal Regulations several times and believes that no such title or section exists.
22 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
23 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
24 supplemental brief, IDS will be required to produce this document as set forth at the
25 conclusion of this order.
26 21.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000199.

27

Defendant will provide IDS_000199 in its entirety to Plaintiffs’ counsel.

[PROPOSED] ORDER- 13

1 22.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000201.

2

IDS Privilege Claim: The corresponding document contains file notes created by

3 IDS in August of 2013. Redacted portions concern defense costs. Accordingly, said
4 document is protected by both the attorney/client privilege and the work product doctrine.
5 The Court finds that Defendant’s Motion for Protective Order is hereby:
6

 GRANTED

7

 DENIED

8 23.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000202-

9 204.
10

IDS Privilege Claim: The corresponding documents are file notes created by IDS in

11 July of 2013. Redacted portions concern defense costs. Additionally, Plaintiff Richard Lear
12 had already filed a complaint with the Department of Insurance. Defendant will provide
13 claim note from July 30, 2013, at 10:20 AM and claim note from July 29, 2013, at 6:45 PM
14 from IDS_000203. Additionally, Defendant will provide to Plaintiffs’ counsel claim note
15 from July 29, 2013, at 5:45 PM from IDS_000204. The remainder of documents
16 IDS_000202-IDS_000204 are protected by both the attorney/client privilege and the work
17 product doctrine.
18

The Court finds that Defendant’s Motion for Protective Order is hereby:

19

 GRANTED

20

 DENIED

21 24.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000205.

22

IDS Privilege Claim: The corresponding redacted portions of the document are file

23 notes created by IDS in July of 2013.

Redacted portions concern defense costs.

24 Accordingly, said documents are protected by the attorney/client privilege.
25

The Court finds that Defendant’s Motion for Protective Order is hereby:

26

 GRANTED

27

 DENIED

[PROPOSED] ORDER- 14

1 25.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000208.

2

IDS Privilege Claim: The corresponding redacted portions of the document are file

3 notes created by IDS in June and July of 2013. Redacted portions concern defense costs.
4 Accordingly, said documents are protected by both the attorney/client privilege and the
5 work product doctrine.
6

The Court finds that Defendant’s Motion for Protective Order is hereby:

7

 GRANTED

8

 DENIED

9 26.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000211.

10

IDS Privilege Claim: The corresponding redacted portions of the document are file

11 notes created by IDS in June of 2013.

Redacted portions concern defense costs.

12 Accordingly, said documents are protected by both the attorney/client privilege and the
13 work product doctrine.
14

The Court finds that Defendant’s Motion for Protective Order is hereby:

15

 GRANTED

16

 DENIED

17 27.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000238-

18

239, 000249-259.

19

IDS Privilege Claim: The corresponding documents are file notes created by IDS

20 from April to May of 2013. Redacted portions concern summaries of liability evaluations
21 and written correspondence from counsel regarding coverage analysis and status of the
22 Special Investigations’ Unit (“SIU”) investigation into Plaintiffs’ PIP and Uninsured
23 Motorist claim. By April 2013, there was sufficient information to question the PIP and
24 Uninsured Motorist claim.

Additionally, Plaintiff Richard Lear had already filed a

25 complaint with the Department of Insurance. Defendant will provide to Plaintiffs’ counsel
26 IDS_000238-IDS_000239 and IDS_000249-IDS_000250.

The remaining documents,

27 IDS_000251-IDS_000259, are protected by both the attorney/client privilege and the work

[PROPOSED] ORDER- 15

1 product doctrine. Therefore, the documents may remain withheld.
2

The Court finds that Defendant’s Motion for Protective Order is hereby:

3

 GRANTED

4

 DENIED

5 28.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000260-

6 261.
7

IDS Privilege Claim: The corresponding redacted portions of the document are file

8 notes created by IDS in March of 2013. Redacted portions concern summaries of liability
9 evaluations, telephone conversations, and written correspondence from counsel regarding
10 coverage analysis and status of the SIU’s investigation into Plaintiffs’ Uninsured Motorist
11 claim. By March 2013, there was sufficient information to question the Uninsured Motorist
12 and PIP claims. Additionally, Plaintiff Richard Lear had already filed a complaint with the
13 Department of Insurance. Accordingly, said documents are protected by both the
14 attorney/client privilege and the work product doctrine.
15

The Court finds that Defendant’s Motion for Protective Order is hereby:

16

 GRANTED

17

 DENIED

18

 GRANTED IN PART AND DENIED IN PART

19

IDS has failed to meet its burden with respect to the following entry: 11:27:01

20 AM. That entry shall be produced to plaintiff as set forth at the conclusion of this order.
21 The remainder of the document may be redacted.
22 29.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000266.

23

Defendant will provide IDS_000266 in its entirety to Plaintiffs’ counsel.

24 30.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000272.

25

Defendant will provide IDS_000272 in its entirety to Plaintiffs’ counsel.

26 31.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000299-

27 300.

[PROPOSED] ORDER- 16

1

IDS Privilege Claim: The corresponding documents are in the form of claim notes

2 created by IDS that reflect and describe medical treatment received by third party plaintiff
3 Troy Milles. The documentation was withheld upon agreement by the parties as confidential
4 information pursuant to 158 CFR§160.
5

The Court finds that Defendant’s Motion for Protective Order is hereby:

6

 GRANTED

7

 DENIED

8

 GRANTED IN PART AND DENIED IN PART

9

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

10 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
11 of Federal Regulations several times and believes that no such title or section exists.
12 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
13 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
14 supplemental brief, IDS will be required to produce this document as set forth at the
15 conclusion of this order.
16 32.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000312.

17

IDS Privilege Claim: The corresponding document is in the form of claim notes

18 created by IDS that reflect and describe medical treatment received by third party plaintiff
19 Troy Milles. The documentation was withheld upon agreement by the parties as confidential
20 information pursuant to 158 CFR§160.
21

The Court finds that Defendant’s Motion for Protective Order is hereby:

22

 GRANTED

23

 DENIED

24

 GRANTED IN PART AND DENIED IN PART

25

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

26 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
27 of Federal Regulations several times and believes that no such title or section exists.

[PROPOSED] ORDER- 17

1 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
2 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
3 supplemental brief, IDS will be required to produce this document as set forth at the
4 conclusion of this order.
5 33.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000314.

6

Defendant will provide IDS_000314 in its entirety to Plaintiffs’ counsel.

7 34.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000317.

8

IDS Privilege Claim: The corresponding document is information regarding Milles v.

9 Lear. The information in this document is not relevant or likely to lead to the discovery of
10 admissible evidence. Therefore, the document may remain withheld.
11

The Court finds that Defendant’s Motion for Protective Order is hereby:

12

 GRANTED

13

 DENIED

14 35.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000318.

15

Defendant will provide IDS_000318 in its entirety to Plaintiffs’ counsel.

16 36.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000324-

17 325.
18

Defendant will provide IDS_000324-IDS_000325 in its entirety to Plaintiffs’

19

counsel.

20 37.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000346-

21 347.
22

Defendant will provide IDS_000346-IDS_000347 to Plaintiffs’ counsel in its

23

entirety.

24 38.

Not Responsive to Plaintiffs’ Requests for Production, Bates No. IDS_000383-

25 391.
26

IDS Privilege Claim: The corresponding documents are medical bills for treatment

27 received by third party plaintiff Tory Milles.

[PROPOSED] ORDER- 18

The documents were withheld upon

1 agreement by the parties as confidential information pursuant to 158 CFR§160. Therefore,
2 the documents may remain withheld.
3

The Court finds that Defendant’s Motion for Protective Order is hereby:

4

 GRANTED

5

 DENIED

6

 GRANTED IN PART AND DENIED IN PART

7

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

8 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
9 of Federal Regulations several times and believes that no such title or section exists.
10 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing
11 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
12 supplemental brief, IDS will be required to produce this document as set forth at the
13 conclusion of this order.
14 39.

Not Responsive to Plaintiffs’ Requests for Production, Bates No. IDS_000439-

15 455.
16

IDS Privilege Claim: The corresponding documents are medical bills for treatment

17 received by third party plaintiff Tory Milles.

The documents were withheld upon

18 agreement by the parties as confidential information pursuant to 158 CFR§160. Therefore,
19 the documents may remain withheld.
20

The Court finds that Defendant’s Motion for Protective Order is hereby:

21

 GRANTED

22

 DENIED

23

 GRANTED IN PART AND DENIED IN PART

24

IDS contends that 158 CFR § 160 protects claim notes regarding the medical

25 treatment received by third party plaintiff Troy Milles. The court has reviewed the Code
26 of Federal Regulations several times and believes that no such title or section exists.
27 Accordingly, IDS may submit a two-page supplemental brief in this regard, citing

[PROPOSED] ORDER- 19

1 applicable legal authority, on or before June 2, 2016. If IDS fails to submit a
2 supplemental brief, IDS will be required to produce this document as set forth at the
3 conclusion of this order.
4 40.

Responsive to Plaintiffs’ Request for Production Nos. 33, 34, and 36; Bates No.

5

IDS_000606-607.

6

IDS Privilege Claim: The corresponding documents are written correspondence

7 dated July 22, 2013, from defense counsel to IDS concerning payment related to legal and
8 coverage analysis services.

Accordingly, said documents are protected by both the

9 attorney/client privilege and the work product doctrine. Therefore, the documents may
10 remain withheld.
11

The Court finds that Defendant’s Motion for Protective Order is hereby:

12

 GRANTED

13

 DENIED

14 41.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

15

IDS_000776-782.

16

IDS Privilege Claim: The corresponding documents are written communications

17 between defense counsel and reconstruction expert David Wells between July 2013 and
18 January 2014. By July 2013, there was sufficient information to question the PIP and
19 Uninsured Motorist claims.

Additionally, Plaintiff Richard Lear had already filed a

20 complaint with the Department of Insurance. Accordingly, said documents are protected by
21 work product doctrine. Therefore, the documents may remain withheld.
22

The Court finds that Defendant’s Motion for Protective Order is hereby:

23

 GRANTED

24

 DENIED

25

These communications begin January 2013 rather than July 2013, as claimed by

26 IDS. Additionally, they appear to be dual purpose documents that would have been
27 created in substantially similar form despite the prospect of litigation. See

[PROPOSED] ORDER- 20

1 Jury Subpoena, 357 F.3d at 908. Accordingly, IDS will be required to produce these
2 documents.
3 42.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

4

IDS_000783-784.

5

IDS Privilege Claim: The corresponding documents are written communication

6 dated May of 2013 between defense counsel and IDS. Redacted portions reflect updates of
7 communications with Plaintiffs’ counsel. By May 2013, there was sufficient information to
8 question the PIP and Uninsured Motorist claims and suspect Plaintiffs could file suit.
9 Additionally, Plaintiff Richard Lear had already filed a complaint with the Department of
10 Insurance. Accordingly, said documents are protected by both the attorney/client privilege
11 and work product doctrine.
12

The Court finds that Defendant’s Motion for Protective Order is hereby:

13

 GRANTED

14

 DENIED

15 43.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

16

IDS_000788-789.

17

IDS Privilege Claim: The corresponding documents are written communication from

18 February to April 2013 between defense counsel and IDS. Redacted portions reflect legal
19 analysis and strategy relative to IDS’ claims investigation. By February 2013, there was
20 sufficient information to question the PIP and Uninsured Motorist claims and suspect
21 Plaintiffs could file suit. Additionally, Plaintiff Richard Lear had already filed a complaint
22 with the Department of Insurance. Accordingly, said documents are protected by both the
23 attorney/client privilege and work product doctrine.
24

The Court finds that Defendant’s Motion for Protective Order is hereby:

25

 GRANTED

26

 DENIED

27 ///

[PROPOSED] ORDER- 21

1 44.

Responsive to Plaintiffs’ Request for Production Nos. 33, 34, and 36; Bates No.

2

IDS_000792-793.

3

IDS Privilege Claim: The corresponding documents are written communication

4 dated March 4, 2013, between defense counsel and IDS.

Redacted portions concern

5 Plaintiffs’ examinations under oath and related legal analysis. By March 2013, there was
6 sufficient information to question the PIP and Uninsured Motorist claim and suspect
7 Plaintiffs could file suit. Additionally, Plaintiff Richard Lear had already filed a complaint
8 with the Department of Insurance. Accordingly, said documents are protected by both the
9 attorney/client privilege and work product doctrine.
10

The Court finds that Defendant’s Motion for Protective Order is hereby:

11

 GRANTED

12

 DENIED

13 45.

Responsive to Plaintiffs’ Request for Production Nos. 33, 34, and 36; Bates No.

14

IDS_000794-796.

15

IDS Privilege Claim:

The corresponding documents are a February 25, 2013,

16 internal memo summary generated by defense counsel after conducting Plaintiffs’
17 examinations under oath regarding the facts surrounding Kyle Lear’s PIP and Uninsured
18 Motorist claims. By February 2013, there was sufficient information to question the PIP and
19 Uninsured Motorist claim.

Additionally, Plaintiff Richard Lear had already filed a

20 complaint with the Department of Insurance. Accordingly, said document is protected by
21 the attorney/client and work product doctrine.
22

The Court finds that Defendant’s Motion for Protective Order is hereby:

23

 GRANTED

24

 DENIED

25 46.

Responsive to Plaintiffs’ Request for Production Nos. 33, 34, and 36; Bates No.

26

IDS_000797.

27

IDS Privilege Claim: The corresponding document is a screenshot from the file

[PROPOSED] ORDER- 22

1 assignment program used by IDS to assign files to counsel and not likely to lead to
2 discoverable information.
3

The Court finds that Defendant’s Motion for Protective Order is hereby:

4

 GRANTED

5

 DENIED

6 47.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

7

IDS_000798-800.

8

IDS Privilege Claim: The corresponding documents are written communications

9 between defense counsel and reconstruction expert David Wells between January and
10 February 2013. By January 2013, there was sufficient information to question the PIP and
11 Uninsured Motorist claims and suspect Plaintiffs could file suit. Additionally, Plaintiff
12 Richard Lear had already filed a complaint with the Department of Insurance. Accordingly,
13 said documents are protected by work product doctrine.
14

The Court finds that Defendant’s Motion for Protective Order is hereby:

15

 GRANTED

16

 DENIED

17 48.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

18

IDS_000801-803.

19

IDS Privilege Claim: The corresponding documents are written communications

20 dated February 24 and 25, 2013 between defense counsel and IDS concerning legal analysis
21 of the ongoing claims investigation as well as recent communication with Plaintiffs’
22 counsel. By February 2013, there was sufficient information to question the PIP and
23 Uninsured Motorist claims and suspect Plaintiffs could file suit. Additionally, Plaintiff
24 Richard Lear had already filed a complaint with the Department of Insurance. Accordingly,
25 said documents are protected by both the attorney/client privilege and work product
26 doctrine.
27

The Court finds that Defendant’s Motion for Protective Order is hereby:

[PROPOSED] ORDER- 23

1

 GRANTED

2

 DENIED

3 49.

Responsive to Plaintiffs’ Request for Production No. 36, Bates No. IDS_000804-

4

805.

5

IDS Privilege Claim: The corresponding documents are written communications

6 dated February 13, 2013 between defense counsel and IDS concerning file materials
7 regarding Plaintiffs’ PIP and Uninsured Motorist claim. Said documents are protected by
8 both the attorney-client privilege and work product doctrine.
9

The Court finds that Defendant’s Motion for Protective Order is hereby:

10

 GRANTED

11

 DENIED

12 50.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

13

IDS_000806-816.

14

IDS Privilege Claim: The corresponding documents are written communications

15 between defense counsel and reconstruction expert David Wells in January of 2013. By
16 January 2013, there was sufficient information to question the PIP and Uninsured Motorist
17 claim and suspect Plaintiffs could file suit. Additionally, Plaintiff Richard Lear had already
18 filed a complaint with the Department of Insurance. Accordingly, said documents are
19 protected by work product doctrine.
20

The Court finds that Defendant’s Motion for Protective Order is hereby:

21

 GRANTED

22

 DENIED

23

These documents appear to be dual purpose documents regarding the investigation

24 of Mr. Lear’s claim that would have been created in substantially similar form despite the
25 prospect of litigation. See In re Grand Jury Subpoena, 357 F.3d at 908. Accordingly,
26 IDS will be required to produce these documents.
27 ///

[PROPOSED] ORDER- 24

1 51.

Responsive to Plaintiffs’ Requests for Production Nos. 33, 34, and 36; Bates No.

2

000817, 821, and 823.

3

IDS Privilege Claim: The corresponding documents are a series of written

4 communications between defense counsel and IDS in January 2013 regarding Plaintiffs’
5 PIP and Uninsured Motorist claim for purposes of obtaining legal advice regarding IDS’
6 claims investigation. By January 2013, there was sufficient information to question the PIP
7 and Uninsured Motorist claim and suspect Plaintiffs could file suit. Additionally, Plaintiff
8 Richard Lear had already filed a complaint with the Department of Insurance. Accordingly,
9 said documents are protected by both the attorney/client privilege and the work product
10 doctrine.
11

The Court finds that Defendant’s Motion for Protective Order is hereby:

12

 GRANTED

13

 DENIED

14 52.

Responsive to Plaintiffs’ Request for Production No. 36; Bates No. IDS_000825.

15

IDS Privilege Claim: The corresponding document is a written communication dated

16 January 3, 2013 between defense counsel’s office and IDS concerning file materials
17 regarding Plaintiffs’ PIP and Uninsured Motorist claims. By January 2013, there was
18 sufficient information to question the PIP and Uninsured Motorist claims and suspect
19 Plaintiffs could file suit. Additionally, Plaintiff Richard Lear had already filed a complaint
20 with the Department of Insurance. Accordingly, said document is protected by both the
21 attorney/client privilege and work product doctrine.
22

The Court finds that Defendant’s Motion for Protective Order is hereby:

23

 GRANTED

24

 DENIED

25 53.

Responsive to Plaintiffs’ Request for Production No. 37; Bates No. IDS_000826-

26

829.

27

IDS Privilege Claim: The corresponding documents are written communications

[PROPOSED] ORDER- 25

1 between defense counsel and IDS in January of 2013 regarding Plaintiffs’ PIP and
2 Uninsured Motorist claims for purposes of obtaining legal advice regarding IDS’ claims
3 investigation. By January 2013, there was sufficient information to question the PIP and
4 Uninsured Motorist claims and suspect Plaintiffs could file suit. Additionally, Plaintiff
5 Richard Lear had already filed a complaint with the Department of Insurance. Accordingly,
6 said documents are protected by both the attorney/client privilege and the work product
7 doctrine.
8

The Court finds that Defendant’s Motion for Protective Order is hereby:

9

 GRANTED

10

 DENIED

11 54.

Responsive to Plaintiffs’ Request for Production No. 37; Bates No. IDS_000833-

12

835.

13

IDS Privilege Claim: The corresponding documents are written communications

14 between defense counsel and IDS from December 2012 to January 2013 regarding
15 Plaintiffs’ PIP and Uninsured Motorist claims for purposes of obtaining legal advice
16 regarding IDS’ claims investigation. By December 2012, there was sufficient information to
17 question the PIP and Uninsured Motorist claims and suspect Plaintiffs could file suit based
18 upon communications with Richard Lear. Accordingly, said documents are protected by
19 both the attorney/client privilege and work product doctrine.
20

The Court finds that Defendant’s Motion for Protective Order is hereby:

21

 GRANTED

22

 DENIED

23 55.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

24

IDS_000839-841.

25

IDS Privilege Claim: The corresponding documents are attorney notes generated by

26 defense counsel in or around February 2013 regarding the facts surrounding Kyle Lear’s
27 PIP and Uninsured Motorist claims. By February 2013, there was sufficient information to

[PROPOSED] ORDER- 26

1 question the PIP and Uninsured Motorist claims and suspect Plaintiffs could file suit.
2 Additionally, Plaintiff Richard Lear had already filed a complaint with the Department of
3 Insurance. Accordingly, said document is protected by the work product doctrine.
4

The Court finds that Defendant’s Motion for Protective Order is hereby:

5

 GRANTED

6

 DENIED

7 56.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

8

IDS_000842-843.

9

IDS Privilege Claim: The corresponding documents are February 25, 2013, internal

10 memo summary generated by defense counsel after conducting Plaintiffs’ examinations
11 under oath regarding the facts surrounding Kyle Lear’s PIP and Uninsured Motorist claims.
12 By February 2013, there was sufficient information to question the PIP and Uninsured
13 Motorist claims and suspect Plaintiffs could file suit. Additionally, Plaintiff Richard Lear
14 had already filed a complaint with the Department of Insurance. Accordingly, said
15 document is protected by the work product doctrine.
16

The Court finds that Defendant’s Motion for Protective Order is hereby:

17

 GRANTED

18

 DENIED

19 57.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

20

IDS_000844-861.

21

IDS Privilege Claim: The corresponding documents are attorney notes generated by

22 defense counsel during the February 22, 2013, examinations under oath of Plaintiffs
23 regarding the facts surrounding Kyle Lear’s PIP and Uninsured Motorist claims. By
24 February 2013, there was sufficient information to question the PIP and Uninsured Motorist
25 claims and suspect Plaintiffs could file suit. Additionally, Plaintiff Richard Lear had
26 already filed a complaint with the Department of Insurance. Accordingly, said documents
27 are protected by the work product doctrine.

[PROPOSED] ORDER- 27

1

The Court finds that Defendant’s Motion for Protective Order is hereby:

2

 GRANTED

3

 DENIED

4 58.

Responsive to Plaintiffs’ Request for Production Nos. 33 and 34, Bates No.

5

IDS_000862-864.

6

IDS Privilege Claim: The corresponding documents are attorney notes generated by

7 defense counsel during the February 22, 2013, examinations under oath of Plaintiffs
8 regarding the facts surrounding Kyle Lear’s PIP and Uninsured Motorist claims. By
9 February 2013, there was sufficient information to question the PIP and Uninsured Motorist
10 claims and suspect Plaintiffs could file suit. Additionally, Plaintiff Richard Lear had
11 already filed a complaint with the Department of Insurance. Accordingly, said documents
12 are protected by the work product doctrine.
13

The Court finds that Defendant’s Motion for Protective Order is hereby:

14

 GRANTED

15

 DENIED

16 59.

Responsive to Plaintiffs’ Request for Production Nos. 7 and 9, Bates No.

17

IDS_000873, 876, 880, 891, 893.

18

IDS Privilege Claim: The corresponding documents are attorney notes generated by

19 defense counsel after being retained by IDS in January of 2013 for the purpose of assisting
20 with examinations under oath. The notes correspond with Troy Milles recorded statements
21 obtained previously by IDS. By January 2013, there was sufficient information to question
22 the Uninsured Motorist claim and suspect Plaintiffs would file suit. Additionally, Plaintiff
23 Richard Lear had already filed a complaint with the Department of Insurance. Accordingly,
24 said document is protected by the work product doctrine.
25

The Court finds that Defendant’s Motion for Protective Order is hereby:

26

 GRANTED

27

 DENIED

[PROPOSED] ORDER- 28

1 60.

Responsive to Plaintiffs’ Request for Production No. 1, Bates No. IDS_000969-

2

001149.

3

IDS Privilege Claim: The corresponding documents are duplicative of documents

4 Nos. IDS_000133-IDS_000353. To the extent said documents were discoverable, they have
5 already been produced. To the extent IDS has asserted privilege, those privileges have been
6 addressed supra in Sections 1 through 39.
7

The Court therefore refers to its rulings on those discrete documents previously

8

addressed.

9 61.

Responsive to Plaintiffs’ Request for Production No. 36, Bates No. IDS_001150-

10

1152.

11

IDS Privilege Claim: The corresponding documents are written communication in

12 February of 2013 between defense counsel and IDS concerning file materials regarding
13 Plaintiffs’ PIP and Uninsured Motorist claims; as well as internal communications
14 generated by defense counsel regarding the same. By February 2013, there was sufficient
15 information to question the PIP and Uninsured Motorist claims and suspect Plaintiffs could
16 file suit.

Additionally, Plaintiff Richard Lear had already filed a complaint with the

17 Department of Insurance. Accordingly, said documents are protected by both the
18 attorney/client privilege and work product doctrine.
19

The Court finds that Defendant’s Motion for Protective Order is hereby:

20

 GRANTED

21

 DENIED

22 62.

Responsive to Plaintiffs’ Request for Production No. 3, Bates No. IDS_001211-

23

1213.

24

IDS Privilege Claim: The corresponding documents are corporate training materials

25 for IDS. IDS has objected to the disclosure of these materials as they are sensitive
26 proprietary information IDS does not want circulated, not relevant to the controversy in
27 question, inadmissible at trial, and not reasonably calculated to lead to the discovery of any

[PROPOSED] ORDER- 29

1 additional admissible evidence.
2

The Court finds that Defendant’s Motion for Protective Order is hereby:

3

 GRANTED

4

 DENIED

5

The court is unaware of a “sensitive and proprietary” privilege or other doctrine that

6 would prevent disclosure of these materials. Accordingly, IDS is directed to produce these
7 documents to the plaintiff. It appears, however, that the parties have failed to agree to a
8 protective order governing discovery. Because training manuals often involve trade secret
9 information, the court directs the parties to treat these documents as “Attorney’s Eyes Only
10 and Confidential.” To the extent either party wishes to rely on these materials in connection
11 with any motion, they may lodge the documents under seal and file a motion to seal that
12 complies with applicable Ninth Circuit law.
13 63.

Responsive to Plaintiffs’ Request for Production Nos. 10 and 25, Bates No.

14

IDS_001734-1738.

15

IDS Privilege Claim: The corresponding documents are notes generated by expert

16 witness David Wells contemporaneously with his investigation of the insured vehicle
17 beginning in January 2013. By January 2013, there was sufficient information to question
18 Plaintiffs’ PIP and Uninsured Motorist claims and suspect Plaintiffs could file suit.
19 Additionally, Plaintiff Richard Lear had already filed a complaint with the Department of
20 Insurance. Accordingly, said document is protected by the work product doctrine.
21

The Court finds that Defendant’s Motion for Protective Order is hereby:

22

 GRANTED

23

 DENIED (Conditionally)

24

It is unclear whether IDS retained Mr. Wells as a consulting expert or a testifying

25 expert.

IDS is directed to file a one-page supplemental brief explaining why these

26 documents are not discoverable. Specifically, IDS should address the applicability of
27 Federal Rule of Civil Procedure 26(b)(4) and Republic of Ecuador v. Mackay, 742 F.3d 860

[PROPOSED] ORDER- 30

1 (9th Cir. 2014).
2

The Court, having reviewed Defendant’s Motion for Protective Order as to the

3 documents referenced above rules as follows:
4

1.

If DENIED, Defendant will produce the corresponding information within 30

5 days from the date of this Order;
6

2.

If GRANTED, the corresponding information shall remain withheld under the

7 privilege asserted.
8

3.

If the court has ordered supplemental briefing with respect to any document,

9 counsel shall file that briefing on or before June 2, 2016.
10

Dated this 27th day of May, 2016.

11
12
13

A

14
15

The Honorable Richard A. Jones
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27

[PROPOSED] ORDER- 31