Wilkinson et al v. Mutual of Omaha Insurance Company et al

Filing 63

ORDER granting in part and denying in part as more fully set forth herein Plaintiff's 29 MOTION to Strike the undersigned's name from Defendant's Rule 26(a)(1) disclosures; directing that Mr. French's name be stricken from the Defendant's Rule 26(a)(1) disclosures at this time; denying Defendant's 31 MOTION to Compel the Deposition of Mark French; denying the parties' requests for other relief at this time. Signed by Magistrate Judge Dwane L. Tinsley on 5/22/2014. (cc: attys) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
LYLE A. AND SUSAN B. WILKINSON,
Plaintiffs,
v.

CASE NO. 2:13-cv-9356

MUTUAL OF OMAHA INSURANCE
COMPANY, an Ohio Corporation,
Defendant.
ORDER
Pending before the Court is Lyle A. and Susan V. Wilkinson’s Motion to Strike (ECF No.
29) and Mutual of Omaha Insurance Company’s Motion to Compel (ECF No. 31).
Subsequently, Mutual of Omaha Insurance Company filed a Response in opposition to the
Motion to Strike (ECF No. 32), Lyle A. and Susan V. Wilkinson filed a Response in opposition
to Mutual of Omaha Insurance Company’s Motion to Compel (ECF No. 38) and Mutual of
Omaha Insurance Company filed a Reply (ECF No. 40).
On August 9, 2013, Defendant Mutual of Omaha Insurance Company filed its Rule
26(a)(1) disclosures with the Court and listed Plaintiffs’ counsel, Mark French, as a fact witness
(ECF No. 12). Plaintiffs filed a Motion to Strike on March 10, 2014 (ECF No. 29). Plaintiffs
assert that Mr. French has always acted as their counsel throughout the entire process of applying
for accelerated death benefits from Defendant, Mutual of Omaha Insurance Company. Plaintiffs
further assert that any communications Mr. French had with Plaintiffs regarding this matter are
protected by the attorney-client privilege and/or work-product doctrine. Plaintiffs’ Motion to
Strike requests Mr. French be removed from Defendant’s Rule 26(a)(1) disclosures and that he

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not be subject to being called as a witness in this matter for any purpose, along with all other and
further relief deemed just and necessary.
By Motion to Compel filed March 19, 2014, Defendant Mutual of Omaha Insurance
Company seeks to compel Plaintiffs’ counsel, Mark French, to sit for deposition regarding his
involvement in the underlying claim for insurance coverage and for this Court to award all other
relief as deemed just and necessary (ECF No. 31). Defendant asserts that Mr. French is a fact
witness in regards to Plaintiffs’ claims for bad faith and violations of the Unfair Trade Practices
Act (hereinafter UTPA) as a result of his involvement in seeking insurance benefits on behalf of
his clients. 1 Defendant asserts that Mr. French had direct interaction with the representatives for
Defendant and it was he who passed the information on to his clients regarding such interactions.
In order to explore Plaintiffs’ damages, and especially the cause of damages asserted, Defendant
asserts it must be allowed to take the discovery deposition of Mr. French (ECF No. 32).
Defendant asserts that Plaintiffs experienced the underlying bad faith and UTPA portion of this
lawsuit through the eyes of Mr. French and relied on him to explain and interpret the events
relating to the underlying claim for insurance benefits. Defendant asserts that it is impossible to
know whether the information obtained through Mr. French’s deposition could be obtained
elsewhere. Defendant has not moved to disqualify Mr. French as Plaintiffs’ counsel at this time.
Disciplinary Rule 5-102 of the Code of Professional Responsibility and Rule 3.7 of the
Rules of Professional Conduct state that it is unethical for a lawyer representing a client to

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Rule 501 of the Federal Rules of Evidence states “[I]n a civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.” Since the issue in this matter alleges violations of the
West Virginia Unfair Trade Practices Act, W.Va. Code § 33-11-4(9), state law should govern.

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appear as a witness on behalf of the client except under very limited conditions. 2 Syl. Pt. 1,
Smithson v. U.S. Fidelity and Guar. Co., 186 W.Va. 195, 411 S.E.2d 850 (1991).
When an attorney is a material witness in a case and is also the advocate for the client, a
record has to be made to determine whether the attorney must be disqualified. Plaintiffs assert
that pursuant to the following disqualification analysis by the West Virginia Supreme Court of
Appeals in Smithson v. U.S. Fidelity and Guar. Co., Mr. French should not be called as a
witness, and therefore should not be disqualified as counsel in this matter.
When an attorney is sought to be disqualified from representing his client
because an opposing party desires to call the attorney as a witness, the
motion for disqualification should not be granted unless the following
factors can be met: First, it must be shown that the attorney will give
evidence material to the determination of issues being litigated; second,
the evidence cannot be obtained elsewhere; and third, the testimony is
prejudicial or may be potentially prejudicial to the testifying attorney’s
client.
Syl. Pt. 3, Smithson.
First, Plaintiffs assert that although Mr. French may have knowledge about this matter,
said information was acquired while he was acting as their counsel, and that knowledge was
protected by the work-product and/or attorney-client communication privilege.

Second,

Plaintiffs assert that the evidence sought by Defendant can be obtained from Defendant’s own
employees. Third, even if Mr. French were called as a witness, any information he had regarding
this matter would be protected by privilege. Based upon the three factors in the Smithson case,
Plaintiffs request Defendant’s Motion to Compel the deposition of Mr. French be denied.

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Disciplinary Rule 5-102 states that after a lawyer learns that he “ought to be called as a witness on behalf of his
client” he shall withdraw from representation. Additionally, after a lawyer learns that he may be called as a witness
other than on behalf of his client, “he may continue the representation until it is apparent that his testimony is or may
be prejudicial to his client.” Under Rule 3.7 of the Rules of Professional Conduct, a lawyer is prohibited from
appearing as a witness on behalf of his client except where: (1) the testimony relates to an uncontested issue; (2) the
testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer
would work substantial hardship on the client.

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In addition to Rule 26(b) of the State and Federal Rules of Civil Procedure limiting
discovery to exclude privileged matters, Rules of Professional Conduct prohibits a lawyer from
disclosing information relating to representation of a client. Specifically, Rule 1.6 of the Rules
of Professional Conduct states “(a) A lawyer shall not reveal information relating to
representation of a client unless the client consents after consultation, except for disclosures that
are impliedly authorized in order to carry out the representation, and except as stated in
paragraph (b).” Paragraph (b) states a lawyer may reveal information reasonably necessary to
prevent a criminal act or to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client.
Attorney-client privilege applies to compelled disclosure of confidences communicated
by client to lawyer, and belongs to the client. See Lawyer Disciplinary Board v. McGraw, 461
S.E.2d 850, 194 W.Va. 788 (1995). On the other hand, a lawyer’s ethical duty of confidentiality
under Rule 1.6 of the Rules of Professional Conduct applies to all information relating to
representation of a client, protecting more than just confidences or secrets of a client. The ethical
duty of confidentiality is not nullified by the fact that the information is part of a public record or
by the fact that someone else is privy to it. (Id.)
The attorney-client privilege, embodied in Rule 26(b) of the State and Federal Rules of
Civil Procedure, includes the work-product doctrine.

In West Virginia there are two

classifications of the work-product doctrine, “fact work product” and “opinion work product.”
See State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 583 S.E.2d 80 (W.Va. 2003).
Consistent with the findings of the United States Court of Appeals for the Fourth Circuit in In re
Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994), the Supreme Court of Appeals of
West Virginia held that “Fact work product is discoverable only ‘upon a showing of both a

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substantial need and an inability to secure the substantial equivalent of the materials by alternate
means without undue hardship.’” Additionally, “Opinion work-product is even more
scrupulously protected as it represents the actual thoughts and impressions of the attorney, and
the protection can be claimed by the client or the attorney.” State ex rel. US Fidelity & Guaranty
Company v. Canady, 460 S.E.2d 677, 691(W. Va. 1995) (quoting In re Grand Jury Proceedings,
33 F.3d at 348).
The United States Supreme Court has recognized the attorney-client privilege as “the
oldest of the privileges for confidential communications known to the common law.” In re
Grand citing Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L.Ed. 2d 584, 101 S.Ct5. 677
(1981). In USF&G, the Supreme Court of Appeals of West Virginia noted that the attorneyclient privilege and the work-product exception are to be strictly construed. AAs the attorneyclient privilege and the work-product exception may result in the exclusion of evidence which is
otherwise relevant and material and are antagonistic to the notion of the fullest disclosure of the
facts, courts are obligated to strictly limit the privilege and exception to the purpose for which
they exist.@ Id. at 684. On the other hand, A[c]ourts must work to apply the privilege in ways
that are predictable and certain@ keeping in mind that A[t]he privilege forbidding the discovery of
evidence relating to communications between an attorney and a client is intended to ensure that a
client remains free from apprehension that consultations with a legal advisor will be disclosed.@
Id. at 684 (citations omitted). As the Court in USF&G explained:
What is at stake here are two important competing policies. One policy
protects the integrity and fairness of the fact-finding process by requiring
full disclosure of all relevant facts connected with the impending
litigation. The other policy promotes full and frank consultation between
a client and a legal advisor by removing the fear of compelled disclosure
of information. AIt is then the function of a court to mediate between them,
assigning, so far as possible, a proper value to each, and summoning to its

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aid all the distinctions and analogies that are the tools of the judicial
process.”
Id. at 684-685 (quoting Clark v. United States, 289 U.S. 1, 13, 53 S.Ct. 465, 469, 77 L.Ed. 993,
999 (1933)).
In USF&G, the Court stated the three elements necessary to determine whether the
attorney-client privilege exists: (1) both parties must contemplate that the attorney-client
relationship does or will exist; (2) the advice must be sought by the client from that attorney in
his capacity as a legal adviser; (3) the communication between the attorney and client must be
intended to be confidential. Additionally, the Court in USF&G found that the claimant bears the
burden of establishing the applicability of the attorney-client privilege.
“[A]n attorney is not required to divulge, by discovery or otherwise, facts developed by
his efforts in preparation of the case or opinions he has formed about any phase of the litigation.”
In re John DOE, et al., v. United States of America, 662 F.2d 1073, 1077 (4th Cir. 1981). Under
the attorney-client privilege, confidential communications made between a client and an attorney
in an effort to obtain legal services are protected from disclosure. Chaudhry v. Gallerizzo, 174
F.3d 394, 402 (4th Cir. 1999). In the present matter, Mr. French’s knowledge about this matter
was obtained while he was acting as Plaintiffs’ counsel. Defendant admits in its Response in
Opposition to Plaintiff’s Motion to Strike and Memorandum in Support of Motion to Compel
(ECF No. 32) that on July 6, 2011, Mr. French, “the Plaintiff’s attorney, sent a letter to Connie
Whitney of Mutual of Omaha and advised that he was Mr. Wilkinson’s attorney-in-fact,
provided a durable power of attorney, and purportedly enclosed Mr. Wilkinson’s accelerated
benefits claim form.” (Id.) Defendant knew at that time that Mr. French was acting as Plaintiffs’
counsel. Second, Mr. French’s communications with Defendant can be obtained elsewhere.

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Defendant’s employees and Plaintiff, Mrs. Wilkinson, are potential witnesses to obtain
information pertaining to the communications between Plaintiffs and Defendant.
Defendant fails to establish the required showing of an inability to secure the substantial
equivalent of the information by alternate means without undue hardship. Under the current
circumstances, the undersigned cannot conclude the present matter justifies Defendant’s
deposition of Plaintiffs’ counsel.
Accordingly, Plaintiffs’ Motion to Strike (ECF No. 29) is GRANTED, in part, and
DENIED, in part.

It is hereby ORDERED that Mr. French’s name be stricken from

Defendant’s Rule 26(a)(1) disclosures at this time. It is further ORDERED that Defendant’s
Motion to Compel (ECF No. 31) is DENIED. The Parties’ requests for other relief are DENIED
at this time.
The Clerk is requested to mail a copy of this Order to all counsel of record.
ENTER: May 22, 2014

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