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Workman v. Cincinnati Insurance Co.

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

December 5, 2017

DAVID P. WORKMAN, Plaintiff,



         This matter is before the Court on Plaintiff David Workman's first motion to compel production of documents. (ECF No. 21). Defendant Cincinnati Insurance Company opposes the motion. (ECF No. 25). On November 29, 2017, the Court heard argument on the motion and received the subject documents for in camera review. Upon review of the documents, the motion to compel will be granted in part and denied in part.

         I. Factual and Procedural Background

         On June 12, 2016, Plaintiff was driving east on a four-lane highway at the same time that Gary Gardner and an unidentified driver were racing each other in the westbound lanes at speeds in excess of 100 miles per hour. (ECF No. 7 at ¶¶ 7-9). Mr. Gardner, now deceased, lost control of his vehicle, crossed the median, and crashed into Plaintiff's vehicle, causing Plaintiff serious physical injury.[1] (Id.).

         At the time of the accident, Plaintiff was insured under an insurance policy issued by Defendant. (Id. at ¶ 5). The policy provided that it would “pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.” (Id. at ¶ 6).

         Plaintiff retained attorney Branson Wood on June 28, 2016. (ECF No. 26). On August 8, 2016, Mr. Wood sent an email to Defendant's senior claims specialist, informing her of Plaintiff's intent “to proceed on an Uninsured Motor Vehicle claim along with the Underinsured Motor vehicle and other claims available to use.” (ECF No. 26-1). On November 4, 2016, Defendant's outside counsel, Brian Hunt, sent Mr. Wood a letter stating: “To the extent that your correspondence [of August 8, 2016] can be construed as a demand for arbitration, please be advised that under the provisions of your clients' underinsured motorist coverage, this demand for arbitration is premature[.]” (ECF No. 26-1). Mr. Wood responded to the letter five days later advising Mr. Hunt that “[w]e will not be pursuing a UIM claim in this matter; however, we will be pursuing instead uninsured motorist claim.” (ECF No. 26-3).

         Mr. Wood sent Mr. Hunt a letter on January 5, 2017 demanding $100, 000 in settlement of Plaintiff's claims. (ECF No. 26-5). Receiving no response from Defendant, Mr. Wood contacted Mr. Hunt again by letter dated February 7, 2017. (ECF No. 26-6) On April 19, 2017, Mr. Wood sent Mr. Hunt a “Supplement to Demand Packet of January 5, 2017, ” reiterating the settlement demand for $100, 00 and warning that, because he had “neither received an acknowledgement of my letter of January 5, 2017, nor a response to the initial letter, . . . .[W]e anticipate filing suit in the near future.” (ECF No. 26-10).

         On May 9, 2017, Plaintiff filed a petition against Defendant in the Circuit Court of Marion County, Missouri alleging breach of contract and vexatious refusal to pay. (ECF No. 7). Defendant removed the case to federal court pursuant to 28 U.S.C. Sections 1332, 1441, and 1446. (ECF No. 1).

         Plaintiff served upon Defendant a request for production of documents requesting, among other things, the “claim file” and Defendant's “sales and promotional materials.”[2] (ECF No. 21). In response to Plaintiff's request for the claim file, Defendant produced a “redacted claim file consisting of some 826 pages” and “a privilege log for documents withheld from the claims file asserting attorney/client privilege and work product[.]” (Id.). The produced documents did not include Defendant's reserve information. (ECF No. 22 at 4).

         Plaintiff filed a motion to compel production of documents arguing that: (1) the privileges asserted by Defendant do not apply to documents created prior to the filing of the instant lawsuit;[3] and (2) Defendant's sales and promotional materials are relevant to the “standard of care, knowledge, and notice and may be a subject of expert testimony in bad faith cases.” (ECF Nos. 21 & 22). Defendant opposed the motion to compel production on the grounds that: (1) the “redacted portions of the claim file were properly withheld from production for attorney-client privilege and under the work product doctrine”; and (2) Plaintiff's request for sales and promotional materials “is overly broad and the relevance of the request is not readily apparent on its face.” (ECF No. 25).

         On November 29, 2017, the Court held a hearing on the motion to compel. After hearing argument from the parties, the Court issued from the bench its ruling with respect to Plaintiff's motion to compel production of sales and promotional material. The Court granted the motion with the following limitations: Defendant shall produce sales and promotional materials from the years 2016 and 2017 that are specific to the Illinois insurance market and similar in nature to the materials in Plaintiff's Exhibit N (ECF No. 26-11).

         In regard to Plaintiff's motion to compel production of the redacted and withheld portions of the claim file, the Court received for its in camera review unredacted copies of the documents listed in the privilege log as Item Nos. 1-9, 15-37, and 51-81. Defendant highlighted the redacted portions to enable the Court to review whether the redacted information was properly withheld under the asserted privileges.

         II. Legal Standard

         “A district court is afforded wide discretion in its handling of discovery matters.” Cook v. Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988). See also Tenkku v. Normandy Bank, 348 F.3d 737, 743 (8th Cir. 2003) (“We will not reverse a district court's discovery ruling absent a gross abuse of discretion resulting in fundamental unfairness in the trial of a case.”) (internal quotation omitted).

         III. Discussion

         Plaintiff argues that the contents of the claim file that were created before he filed this lawsuit are not subject to either the attorney-client or work-product privilege. (ECF No. 22 at 4). Plaintiff urges the Court to order production of the entire claim file, including the reserve information, or, in the alternative, review the unredacted file in camera to determine which documents, if any, are privileged. Defendant counters that the redacted portions of the claim file “were properly withheld from production for attorney-client privilege and under the work product doctrine.” (ECF No. 25 at 1).

         The scope of discovery under Fed.R.Civ.P. 26(b) is extremely broad. Mills v. Liberty Mut. Ins. Co., No. 4:16-CV-00571 JAR, 2017 WL 1497904, at * 2 (E.D.Mo. April 24, 2017) (quoting Gowan v. Mid Centry Ins. Co., 309 F.R.D. 503, 508 (D.S.D. 2015)). See also 8 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure ยง 2007, 3637 ...

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