Reverse Now VII, LLC v. Oregon Mutual Insurance Company

Filing 95

ORDER granting in part and denying in part re Plaintiff's 57 MOTION to Compel. Signed by Judge Marsha J. Pechman. (PM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

REVERSE NOW VII, LLC,
Plaintiff,

11
12
13

CASE NO. C16-209-MJP
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION TO
COMPEL

v.
OREGON MUTUAL INSURANCE
COMPANY,

14
Defendant.
15
16

THIS MATTER comes before the Court on Plaintiff Reverse Now VII (“Reverse

17

Now”)’s in camera submission. Having reviewed the in camera submission and the earlier

18

briefing on Defendant Oregon Mutual Insurance Company (“Oregon Mutual”)’s Motion to

19

Compel (Dkt. Nos. 57, 67, 74), the Court GRANTS IN PART and DENIES IN PART the

20

Motion to Compel.

21
22

Background
Many of the facts of this case are set forth in detail in prior orders, and the Court will not

23

repeat them here. (See, e.g., Dkt. Nos. 40, 43.) The remaining relevant facts are as follows:

24

Shortly after the loss in dispute, Plaintiff retained Paul Moreland and HMA Loss Consultants

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL - 1

1

LLC (“HMA”) to represent it in its claim, including during the appraisal process in January-

2

February 2016. (Dkt. No. 49.) Plaintiff disclosed Mr. Moreland as an expert in March 2018.

3

(Id.).

4

In April 2018, upon learning that Mr. Moreland failed to maintain a valid public

5

adjusters’ license throughout the appraisal process, Oregon Mutual amended its answer to add

6

affirmative defenses of misrepresentation and concealment, and moved to compel

7

correspondence and documents related to Mr. Moreland and HMA. (See Dkt. Nos. 54, 57, 76.)

8

Oregon Mutual contends that Plaintiff has improperly withheld documents and

9

communications generated in the course of Mr. Moreland’s role as a public adjuster. (Dkt. No.

10

57.) The Court ordered Plaintiff to produce all documents relating to Mr. Moreland and/or HMA

11

generated before he was retained as an expert, and to submit for in camera inspection all

12

documents generated after he was retained. (Dkt. No. 79.) That inspection is now complete.

13
14
15

Discussion
I.

Legal Standard
Federal Rule of Civil Procedure 26(b)(3) provides that “[o]rdinarily, a party may not

16

discover documents and tangible things that are prepared in anticipation of litigation or for trial

17

by or for another party or its representative (including the other party’s attorney, consultant,

18

surety, indemnitor, insurer, or agent).” The Ninth Circuit has explained that “a document should

19

be deemed prepared in anticipation of litigation and thus eligible for work product protection

20

under Rule 26(b)(3) if in light of the nature of the document and the factual situation in the

21

particular case, the document can be fairly said to have been prepared or obtained because of the

22

prospect of litigation.” In re Grand Jury Subpoena, 357 F.3d 900, 907 (9th Cir. 2004). If a

23
24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL - 2

1

document would have been created in substantially similar form in the normal course of

2

business, however, the fact that litigation is pending will not protect it from discovery. Id.

3
4

II.

In Camera Inspection
Plaintiff submitted 294 documents and communications for the Court’s inspection. (See

5

Dkt. No. 81, Ex. 2.) After reviewing these materials, the Court finds that the majority of

6

documents identified for work product protection and attorney-client privilege were properly

7

withheld.

8

The vast majority of the withheld documents appear to either be communications

9

between Mr. Moreland and Plaintiff’s lawyers, or documents generated by Mr. Moreland at the

10

request of Plaintiff’s lawyers. In this regard, “the degree to which counsel is involved in

11

preparation of a document can obviously ease the burden of establishing that the document was

12

created ‘in anticipation of litigation or for trial,” as “[i]t is, after all, lawyers who typically

13

conduct litigation and try cases.” MKB Constructors v. Am. Zurich Ins. Co., 2014 WL

14

12029371, at *4 (W.D. Wash. July 22, 2014). Further, the Court is aware of no authority for the

15

position that a public adjuster—whether licensed or not—cannot properly be considered a party’s

16

“representative” for purposes of Rule 26(b)(3) where, as here, he works on behalf of the party or

17

the party’s counsel.

18

While Oregon Mutual observes that many of the withheld documents are related to the

19

appraisal process (Dkt. No. 57 at 6), that is to be expected as many of the claims in the litigation

20

are based upon allegations of fraud in that process. Contrary to Oregon Mutual’s suggestion, it

21

can hardly be said that documents generated by Mr. Moreland months after the close of the

22

appraisal process were generated as “a part of the appraisal process” and thus “in the normal

23

course of business.” (Id.)

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL - 3

1

Nevertheless, the Court finds that several of the withheld documents do not meet the

2

requirements of Rule 26(b)(3) and are not otherwise subject to privilege. For example,

3

Document Nos. 115, 116, and 218 appear to primarily consist of communications between Mr.

4

Moreland and non-parties, such that any claim of protection or privilege has been waived.

5

Further, the Court finds that Plaintiff’s privilege log is woefully inadequate, and does not even

6

begin to “describe the nature of the documents, communications, or tangible things not produced

7

or disclosed . . . in a manner that, without revealing information itself privileged or protected,

8

will enable other parties to assess the claim,” as required under Rule 26(b)(5).

9

Conclusion

10

1. Plaintiff is ORDERED to turn over copies of the following documents, as numbered in

11

the “Combined Privilege Log of Withheld Moreland/HMA Documents” (Dkt. No. 81,

12

Ex. 2): No. 66, 115, 116, 141, 145, 150, 152, 157, 158, 160, 185, 218, 219, 221, 228, 254,

13

260, and 292.

14
15
16

2. Plaintiff is ORDERED to provide Defendants with a revised privilege log that complies
with the requirements of Rule 26(b)(5);
3. Plaintiff is to comply by no later than ten (10) days of the date of this Order.

17
18

The clerk is ordered to provide copies of this order to all counsel.

19

Dated July 11, 2018.

21

A

22

Marsha J. Pechman
United States District Judge

20

23
24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL - 4