United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
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.
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'
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
▪ Claim file entries regarding this bad faith
litigation, including entries concerning advice from coverage
▪ 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.
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 ...