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Mills v. Liberty Mutual Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

May 10, 2017

ROGER MILLS, JR., Plaintiff,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on final unresolved issues concerning Plaintiff Roger Mills, Jr's March 6, 2017 Motion to Compel (Doc. 26). On April 24, 2017, the Court entered an Order (Doc. 35) that, among other directives, held the motion in abeyance to the extent it sought documents from the claim file for which Defendant had asserted privilege, pending an in camera review of the documents. The Court has performed an in camera review of those documents and, for the following reasons, the Court will deny Plaintiff's Motion to Compel to the extent it seeks an order compelling Defendant to produce certain documents created in relation to Plaintiff's insurance claim.

         Discussion

         Federal Rule of Civil Procedure 26 governs discovery in civil cases. Specifically Rule 26(b) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party”. Fed.R.Civ.P. 26(b). The rule also places certain requirements on the party claiming the privilege. “[I]t is the long established rule that confidential communications between an attorney and his client are absolutely privileged from disclosure against the will of the client.” Diversified Industries, Inc. v. Meradith, 572 F.2d 596, 601 (8th Cir. 1977). A second rule, applicable to the case at bar, “is that information or materials assembled by or for a person in anticipation of litigation or in preparation for trial may be qualifiedly privileged from disclosure to an opposing party.” Id. “That rule is known as the ‘work product' rule”. Id.

         In his Motion to Compel, Plaintiff seeks a number of documents from a claim file Defendant created in relation to the motor vehicle accident giving rise to this lawsuit. Generally, “[a]n insurer's decision to decline coverage is typically the point at which the ordinary course of business ends and the anticipation of litigation begins.” Med. Protective Co. v. Bubenik, No. 4:06CV01639 ERW, 2007 WL 3026939, at *3 (E.D. Mo. Oct. 15, 2007). Defendant argues that this general principle does not supersede the protections afforded under the attorney-client privilege and work product doctrine. As a result, Defendant produced to Plaintiff redacted copies of certain documents and withheld others on the basis of those privileges. The Court has performed an in camera review of the redacted or withheld documents, including the following:

▪ Direct communications between Susan Walland, senior claims resolution specialist, and Christopher Shumate, corporate legal counsel for Defendant, and attachments;
▪ Direct communications between Christopher Shumate and defense counsel, and attachments;
▪ Direct communications, including a coverage opinion, between Robert Ford, coverage counsel for Liberty Mutual Insurance Company, and Kelly Hardy, senior claims specialist;
▪ A coverage referral form and documents summarizing coverage review;
▪ Claim file entries regarding this bad faith litigation, including entries concerning advice from coverage counsel;
▪ Portions of Plaintiffs claim file pre-dating March 24, 2015 that redact references to communications with Defendant's trial or coverage counsel;
▪ Claim file notes created after Plaintiff initiated litigation against Defendant; and
▪ Correspondence and attachments redacting personally identifiable information regarding individuals that are not parties to this litigation.

         The Court is satisfied that each of the documents it reviewed is protected by the attorney-client privilege, the work product doctrine, or was properly redacted to protect personally identifiable information. More specifically, the contents of the communications with Robert Ford show that the purpose was to obtain legal advice from outside counsel as to coverage for the claims asserted by Plaintiff. These are exactly the type of communications protected by the attorney-client privilege. See Upjohn Co. v. United States, 449 U.S. 383 (1981); Arch Coal, Inc. v. Fed. Ins. Co., No. 4:05CV00712 ERW, 2006 WL 1391317, at *1 (E.D. Mo. May 22, 2006) (“The coverage opinion constitutes a communication between an attorney and his client and is protected by the attorney-client privilege.”). Moreover, to the extent some of the documents contain communications between Defendant's employees - or are included in entries to the claim file - regarding the ...


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