Smith et al v. Scottsdale Insurance Company et al

Filing 148

MEMORANDUM OPINION AND ORDER AFFIRMING THE MAGISTRATE JUDGE'S ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL***SEALED***; LIFTING STAY as to production of documents requested to be produced under seal; Af firming 100 Order, which Grants in Part and Denies in Part 70 Motion To Compel; and Denying as Moot 110 Motion; Defendants to produce (not under seal) Documents listed within 5 days of date of this order. Signed by Senior Judge Frederick P. Stamp, Jr on 8/22/14. (soa) Modified on 8/22/2014 to unseal document and regenerate NEF (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LEVERT SMITH and NELSON D. RADFORD,
Co-Administrators of the Estate of
JOSEPH JEREMAINE PORTER,
Plaintiffs,
v.

Civil Action No. 5:12CV86
(STAMP)

SCOTTSDALE INSURANCE COMPANY,
SCOTTSDALE INDEMNITY COMPANY,
and NATIONWIDE INSURANCE COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING THE MAGISTRATE JUDGE’S ORDER
GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO COMPEL
I.

Background

The plaintiffs originally filed this action in the Circuit
Court of Ohio County, West Virginia.

Thereafter, the original

defendants removed the action to this Court based on diversity
jurisdiction.

The plaintiffs are the Co-Administrators of the

Estate of Joseph Jeremaine Porter.

Mr. Porter was fatally injured

in a shooting involving a police officer who was an employee of the
City of Huntington’s Police Department.

The remaining defendant,

Scottsdale Insurance Company (“Scottsdale”),1 was the City of
Huntington’s insurer at that time of the shooting.

The plaintiffs

sued the City of Huntington and the police officer as a result of
1

This Court previously dismissed defendants Scottsdale
Indemnity Company and Nationwide Insurance Company pursuant to the
parties’ stipulation of dismissal (ECF No. 24).

the shooting.2

The defendant, Scottsdale, provided the City’s and

the officer’s defense.

Mediation and settlement negotiations

between the parties were unsuccessful.

Eventually all claims were

resolved in the City of Huntington’s and the police officer’s
favor, either through summary judgment, judgment as a matter of
law, or through a jury verdict.
This

suit

arises

from

the

unsuccessful

mediation

and

subsequent settlement negotiations between the defendant and the
plaintiffs, which took place during the above-described litigation
(“underlying claim”).
complaint.

The plaintiffs asserted two counts in their

Only Count I remains, however, because Count II of the

complaint was dismissed pursuant to this Court’s memorandum opinion
and order granting defendant’s partial motion to dismiss.
No. 67.

See ECF

Count I of the complaint asserts that the defendant

violated the West Virginia Human Rights Act, W. Va. Code § 5-11-1
et seq., when it did not settle the plaintiffs’ underlying claim
against the City and the officer.
Various discovery disputes have arisen between the parties
since

the

plaintiffs

filed

this

action.

As

a

result

of

a

particular discovery dispute, the plaintiffs filed a motion to
compel the documents withheld by the defendant from the underlying
claim file on the basis of attorney-client privilege and work-

2

Plaintiffs’ claims in the underlying action were for
negligence, wrongful death, and for a deprivation of constitutional
rights under 42 U.S.C. § 1983.
2

product protection.

After an in camera review of the documents

that the defendant alleged to be privileged, the magistrate judge
granted in part and denied in part plaintiffs’ motion to compel.
The magistrate judge found that some documents were protected by
attorney-client privilege, some were protected by work-product
protection, some were protected by both attorney-client privilege
and work-product protection, and some were not protected by either
attorney-client privilege or work-product protection.
The magistrate judge informed the parties that they may object
to his order within 14 days from the date of the order being filed.
Thereafter, the defendant filed objections and also filed two
motions.

First, the defendant filed a motion to stay the order on

its motion to compel and second, the defendant filed a motion to
file the documents subject to their objections under seal.

This

Court granted the defendant’s motion to stay the order on the
motion to compel as to the documents to which the defendant
objected to having to produce to the plaintiffs, until this Court
issued a ruling on the defendant’s objections.

See ECF No. 117.

At that time, no action was taken on the defendant’s motion to file
the documents subject to the objections under seal. The plaintiffs
also filed objections to the magistrate judge’s order on the motion
to compel, which were labeled as an “appeal” of the magistrate
judge’s decision.

The defendant responded in opposition to such

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objections.

For the reasons stated below, this Court affirms the

magistrate judge’s order on the motion to compel.
II.

Applicable Law

As to nondispositive pretrial matters, a magistrate judge’s
ruling may be reversed only on a finding that the order is “clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a); 28 U.S.C.

§ 636(b)(1). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake
has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

In light of the broad discretion given

to a magistrate judge in the resolution of nondispositive discovery
disputes, the court should only overrule a magistrate judge’s
determination if this discretion is abused.

Detection Sys., Inc.

v. Pittway Corp., 96 F.R.D. 152, 154 (W.D. N.Y. 1982).
III.

Discussion

The plaintiffs and defendant both filed objections to the
magistrate judge’s order on the plaintiffs’ motion to compel.
Accordingly, this Court will address each party’s objections in
turn.
A.

Plaintiffs’ Objections
The plaintiffs object to the magistrate judge’s findings, as

to the following documents, identified by Bates number:

4

•

92-94, 244-47, 863-64, 904-05, 940-42, 991-95, 1146-48, 115458, 1159-63, 1791-92, 2745047, 26-33, 63-64, 104-14, 1814-15,
1817-18, 1991, 1966-90, 1995-96, 2027-28, 2029, 2030-31, 203435, 2036, 115-19, 165-69, 1295-96, 78-90, 148-50, 183-94, 198235, 236-40, 668-71, 676-716, 803-805, 836, 885-91, 906-13,
919-923, 935-39, 951-53, 957-61, 981-83, 1074-76, 1082-98,
1099-101, 1102-14, 1142-45, 1149-53, 1171-76, 1210-13, 121425, 1300-05, 1306-07, 1309-11, 1336-39, 1710-21, 1759-84,
1793-95, 1808-11, 1819-39, 2154, 2502-03, 2715-2719, 2724-26,
2731-33, 2734-35, and 2737-39.
As to these documents, the plaintiffs object to the magistrate

judge’s findings that these documents are protected by work-product
protection,

attorney-client

privilege,

protection and attorney-client privilege.

or

both

work-product

After an in camera

review of these documents, however, this Court finds that such
documents are subject to the privilege found by the magistrate
judge.

As such, this Court finds the magistrate judge’s findings

relating to these documents were not clearly erroneous or contrary
to law and the defendant is not required to produce such documents
to the plaintiff.
B.

Defendant’s Objections
The defendant objects to the magistrate judge’s findings, as

to the following documents, identified by Bates number:

5

•

120-23, 196-97, 248, 781, 795, 880, 894, 914, 978, 165, and
1993-94.
The

magistrate

defendant
judge

argues
ordered

that
the

these

documents,

defendant

to

which

produce

the

to

the

plaintiffs, are protected by work-product protection, attorneyclient privilege, or both. Accordingly, the defendant asserts that
this Court should overrule the magistrate judge’s findings to the
contrary and find that such documents need not be produced.

After

an in camera review of these documents, however, this Court finds
that such documents are not subject to attorney-client privilege or
protected by the work-product doctrine.

As such, this Court finds

the magistrate judge’s finding relating to these documents was not
clearly erroneous or contrary to law.

See Republican Party of

North Carolina v. Martin, 136 F.R.D. 421, 430 (E.D.N.C. 1991)
(finding certain documents, which contain only compilations of
facts and are devoid of any legal analysis, are unprotected by the
work product doctrine).
IV.
For

the

reasons

Conclusion

stated

above,

this

Court

AFFIRMS

the

magistrate judge’s order on in camera document production (ECF No.
100), and OVERRULES the defendant’s objections (ECF No. 108) and
OVERRULES the plaintiffs’ objections (ECF No. 114).

Further,

because this Court is overruling defendant’s objections, it DENIES
AS MOOT the defendant’s motion to produce the objected to documents

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under seal (ECF No. 110) and the stay as to production of these
documents is hereby LIFTED.

Accordingly, the defendants are

ORDERED to produce the documents listed above within 5 days of the
date of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

August 22, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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