United States District Court, E.D. Missouri, Northern Division
DAVID P. WORKMAN, Plaintiff,
THE CINCINNATI INSURANCE CO., Defendant.
MEMORANUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural Background
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. (Id.).
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).
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).
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).
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).
served upon Defendant a request for production of documents
requesting, among other things, the “claim file”
and Defendant's “sales and promotional
materials.” (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).
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; 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).
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.
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
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).
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).
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 § 2007, 3637 ...