United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
breach of contract action, plaintiff Electric Power Systems
International, Inc. (EPS), claims that its insurer, defendant
Zurich American Insurance Company, wrongfully denied coverage
on a third-party property damage claim made against EPS. EPS
also brings claims of bad faith failure-to-settle and
vexatious refusal to pay. Pending before the Court is
EPS’s motion to compel in which it claims that Zurich
improperly invoked the attorney-client and work product
privileges to withhold certain documents from production in
discovery. I have reviewed the challenged documents in
camera and, based upon my review, the motion to compel
will be granted in part and denied in part.
2014, EPS was performing labor under a contract it had with
Louisville Gas and Electric Company (LGE) when an LGE
transformer was damaged. LGE claimed that EPS caused the
damage. EPS tendered the LGE claim to Zurich on July 30,
2014. Zurich denied the claim on August 11, 2014.
August 22, 2014, Zurich received correspondence from
EPS’s legal counsel, advising that EPS was willing to
take legal steps and consider all legal avenues available in
relation to the denied claim. Brian Lindemann, a Zurich
adjuster assigned to the claim, thereafter contacted
Zurich’s in-house legal counsel, John Freeman. Zurich
eventually retained outside counsel. EPS first received
correspondence from Zurich’s outside counsel on January
5, 2015. EPS filed this lawsuit on July 10, 2015.
the course of discovery and in response to EPS’s
request for production of documents, Zurich asserted the
attorney-client and/or work product privilege with respect to
information contained in a number of documents from its claim
file and claim notes. Zurick produced redacted versions of
these documents and a privilege log justifying the
redactions. In its motion to compel, EPS challenges the
redactions made in 55 pages of these documents, questioning
whether the withheld information is truly protected by the
asserted privileges. I granted EPS’s request for in
camera review, and Zurich produced to me unredacted
versions of the documents, identified by Bates numbers, with
the originally redacted portions of the documents contained
within outlined boxes.
party objecting to discovery on the ground of privilege,
Zurich bears the burden of establishing the existence of
privilege, whether it be attorney-client or work product.
Advanced Pain Ctrs. Poplar Bluff v. Ware, 11
F.Supp.3d 967 (E.D. Mo. 2014). If Zurich meets its burden
with respect to attorney-client privilege, the inquiry ends
given that the privilege is an absolute bar to production
absent waiver. If Zurich shows the information is protected
because it is work product, EPS may nevertheless obtain the
discovery if it shows a substantial need for the documents
and that it cannot otherwise obtain the substantial
equivalent of the materials without undue hardship.
Fed.R.Civ.P. 26(b)(3)(A)(ii); PepsiCo., Inc. v. Baird,
Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir.
law applies to claims of attorney-client privilege in
diversity cases. Baker v. General Motors Corp., 209
F.3d 1051, 1053 (8th Cir. 2000).
privilege “protects ‘any professionally-oriented
communication between attorney and client regardless of
whether it is made in anticipation of litigation or for
preparation for trial.’” Lloyd’s
Acceptance Corp. v. Affiliated FM Ins. Co., No.
4:05CV1934 DDN, 2012 WL 1389708, at *7 (E.D. Mo. Apr. 23,
2012) (quoting State ex rel. Tillman v. Copeland,
271 S.W.3d 42, 45 (Mo.Ct.App. 2008)).
[W]here legal advice of any kind is sought from a
professional legal advisor in his capacity as such, the
communications relevant to that purpose, made in confidence
by the client, are at his instance permanently protected from
disclosure by himself or by the legal advisor except the
protection be waived.
Diversified Indus., Inc. v. Meredith, 572 F.2d 596,
602 (8th Cir. 1977) (internal quotation marks and citation
omitted). The privilege does not attach unless the
communication is between parties bearing the relationship of
attorney and client, is made to obtain legal services or
advice, and involves the lawyer in his capacity as a lawyer -
“not in some other capacity.” Id.; see also
United States v. Spencer, 700 F.3d 317, 320 (8th Cir.
2012); Tillman, 271 S.W.3d at 45.
between a client’s representatives regarding the
decision to seek legal advice is not subject to the privilege
if it is not a request directed to counsel for the purpose of
obtaining such advice. Olga Despotis Trust v. Cincinnati
Ins. Co., No. 4:12CV02369 AGF, 2014 WL 3477310, at *3
(E.D. Mo. July 15, 2014). Nor does merely including counsel
among the recipients of a document bring the document within
the ambit of the attorney-client privilege; the document must
be shared in furtherance of the client’s solicitation
of legal advice. Lloyd’s, 2012 WL 1389708, at
*7 (citing Diversified Indus., 572 F.2d at 609;
Monsanto Co. & Monsanto Tech. LLC v. E.I. Du Pont de
Nemours & Co., No. 4:09CV686 ERW, 2011 WL 4408184,
at *2 (E.D. Mo. Sept. 22, 2011)).
made by representatives of an insurer for the purpose of
facilitating the rendition of legal services to the client
are protected by the attorney-client privilege.
Navigators Mgt. Co. Inc. v. St. Paul Fire & Marine
Ins. Co., No. 4:06CV1722 SNLJ, 2009 WL 465584, at *4
(E.D. Mo. Feb. 24, 2009). These include communications with
in-house counsel as well as memorializing such
communications. Lloyds, 2012 WL 1389708, at *7-8.
Keeping in-house counsel apprised of the business activities
of the insurer’s adjuster, however, is not protected.
Id. at *7; see also Monsanto Co., 2011 WL
4408184, at *2 (the “attorney-client privilege does not
cover client communications that relate only to business or
technical data, where the client is not sharing that
information in order to solicit legal advice”).
extent Zurich contends that certain redacted portions of the
challenged documents are protected by the attorney-client
privilege,  I have reviewed the documents in
camera and find the following portions of the documents
not to fall within the attorney-client parameters described
above and therefore not to be so protected:
a. Bates 145: the information contained in the Subject line
of the email
b. Bates 158: the information contained in the Subject line
of the email
c. Bates 168: first redacted box - claim number, but
without the accompanying ...