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Martin v. The Cincinnati Incsurance Co.

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

July 13, 2018

ANTHONY MARTIN, Plaintiff,
v.
THE CINCINNATI INSURANCE CO., Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on those portions of Plaintiff's Motion to Compel (ECF No. 25), Plaintiff's Supplement to Motion to Compel (ECF No. 33), and Plaintiff's Second Motion to Compel (ECF No. 34) which the Court held in abeyance pending in camera review of Defendant's answers to discovery requests. The motions are fully briefed and ready for disposition.

         I. Background

         The background of this case has been fully set forth in the Memorandum and Order of May 31, 2018 (ECF No. 51) and is incorporated by reference herein. On June 4, 2018, the Court ordered Defendant to submit certain discovery documents to the Court for in camera review. Plaintiff filed motions to compel documents related to his claim evaluation and reserve amounts authorized by Defendant. However, Defendant contends that the information is protected by attorney-client and/or the work product privilege. Defendant submitted unredacted copies of the documents listed in Defendant's privilege log with coordinating Bates Numbers. Defendant highlighted the redacted portions to allow the Court to review whether those redacted portions were properly withheld under the asserted privileges.

         II. Legal Standard

         The scope of discovery for actions filed in federal court is set forth in Federal Rule of Civil Procedure 26. That rule provides:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “The rule vests the district court with discretion to limit discovery if it determines, inter alia, the burden or expense of the proposed discovery outweighs its likely benefit.” Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (citing Fed.R.Civ.P. 26(b)(1)).

         However, certain types of discovery are protected by claims of privilege. The party objecting to discovery on the basis of attorney-client or work product privilege bears the burden of establishing that such privilege exists. Am. Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 WL 3978369, at *2 (E.D. Mo. September 11, 2017). In a diversity case, courts “apply federal law to resolve work product claims and state law to resolve attorney-client privilege claims.” Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000).

         III. Discussion

         A. Attorney-Client Privilege

         Attorney-client 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. 4:05 CV 1934 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)). “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.” Thomas, 2017 WL 3978369, at *2. “Communications 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.” Id. at *3 (citing 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)). Such protected communications “include communications with in-house counsel as well as memorializing such communications.” Id. (citing Lloyd's, 2012 WL 1389708, at *7-8).

         Defendant contends that many of the documents produced for in camera review contain communications between the Defendant insurer and its defense counsel and are thus protected by attorney-client privilege. The Court agrees that most of the documents referenced in the privilege log as protected by attorney-client privilege and submitted to the Court are communications between Defendant and its attorney regarding the strategy and progress pertaining to Plaintiff's claim and demands. These protected documents include Bates ## 00956-00961, 00992-01048, [1] 01048-01364, and 01365.

         However, “attorney-client privilege does not cover client communications that ‘relate only business or technical data,' where the client is not sharing that information in order to solicit legal advice.” Monsanto Co. & Monsanto Tech. LLC v. E.I. Du Pont De Nemours & Co., No. 4:09CV00686 ERW, 2011 WL 4408184, at *2 (E.D. Mo. Sept. 22, 2011) (quoting Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987)). The Court finds that Bates # 00889 is simply an entry showing that a communication took ...


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