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Greenbank v. Great American Assurance Co.

United States District Court, S.D. Indiana, Evansville Division

December 4, 2019



          Matthew P. Brookman United States Magistrate Judge

         This matter is before the Court on Plaintiff's Julie Greenbank, Motion to Compel (Docket No. 48) and Supplemental Motion to Compel (Docket No. 53). These motions are fully briefed with a combined response (Docket No. 57) and a reply (Docket No. 62). Defendant, Great American Assurance Company (“Great American”) has also requested Oral Argument as to Plaintiff's motions. (Docket No. 58). As explained below, the Court GRANTS in part and DENIES in part Julie Greenbank's Motion and Supplemental Motion to Compel (Docket No. 48; Docket No. 53). Great American's request for Oral Argument (Docket No. 58) is DENIED as moot.

         I. OVERVIEW

         This matter involves a dispute between Ms. Greenbank, a horse owner, and the insurance company that provided the horse's equine mortality policy, which included a major medical provision. On December 20, 2018, Julie Greenbank filed her Amended Complaint alleging that Great American, the insurer for Ms. Greenbank's horse, Thomas, breached its contract with Ms. Greenbank and was liable for bad faith, theft, conversion, criminal mischief, fraud, and negligence. (See generallyDocket No. 10). Ms. Greenbank's legal claims against Great American are grounded in allegations that Great American improperly took possession and control of Thomas, rather than authorizing euthanization, so that Great American could avoid having to pay out benefits for a mortality loss under the parties' insurance policy. (Id.). Ms. Greenbank argues that Great American has subjected Thomas to inhumane, controversial, and excessive medical procedures to keep him alive and avoid paying out the policy. (Id.).

         Great American held an $500, 000 equine mortality policy, which included major medical and guaranteed renewal endorsements, on Thomas. (Docket No. 10, ¶ 11). It asserts that it took possession of Thomas pursuant to a policy provision that permitted it to assume control over Thomas's medical treatment at its expense. (See generallyDocket No. 11; Docket No. 15-1 at ECF pp. 3-4). Great American retained Hagyard Equine Medical Institute (“Hagyard”) to provide Thomas's ongoing medical treatment, which is where he remains today. (Docket No. 48-1 at ECF p. 34). Great American subsequently terminated the insurance policy for a multitude of reasons. (See generallyDocket No. 11; Docket No. 15-1 at ECF pp. 3-4). Great American claims that since it took possession and control of Thomas's care, Thomas has made a significant recovery. (Id.). Of relevance, in its Answer, Great American asserts Affirmative Defense No. 27, which provides that “[a]t all times, Defendant has acted appropriately and in good faith and in compliance with applicable provisions of law.” (Docket No. 11 at ECF p. 13).

         At the time of the instant dispute, Ms. Greenbank had served six sets of discovery, constituting over 100 individual requests for documents. (Docket No. 57-2). These included Ms. Greenbank's Requests for Production (“RFP) seeking, in part, documents relating to the possession, control, and treatment of Thomas, the policies, claims and investigation under the policies, including internal communications, from June 2018 to present. (Docket No. 48-4; Docket No. 48-5; Docket No. 48-6). In response, Great American has served over 5, 000 pages of documents, including pre and post-suit text communications of Great American personnel, Great American's pre-suit claim notes, post-suit photographs, and videos of Thomas. (Docket No. 57-3; Docket No. 57-4; Docket No. 57-5; Docket No. 57-6).

         On May 7, 2019, Great American produced a 79-page Privilege Log withholding or redacting nearly 800 documents based on confidentiality, relevance, and attorney-client/work-product privileges. (Docket No. 48-7). Ms. Greenbank took issue with several documents in the original privilege log and demanded to review almost the entirety of the alleged attorney-client and work-product privileged documents enclosed therein. (Docket No. 57-9 at ECF p. 1). On June 27, 2019, Great American provided a Supplemental Privilege Log with additional explanations for the items that Ms. Greenbank wished to review. (Docket No. 57 at ECF p. 7).[1]The Supplemental Log specifies responsive documents withheld or redacted under privileges for (i) attorney-client, (ii) work product, (iii) relevance and, (iv) confidentiality. (Docket No. 57-8).

         Ms. Greenbank argues that it was evident during Great American's senior claims adjuster (Bloxsom), senior underwriter (Barcus), and claims supervisor's (Moore) depositions that none had seen the Privilege Log prior to the deposition, had been asked to review any document for privilege, had knowledge as to why their documents have been withheld or redacted. (Docket No. 48-1 at ECF pp. 35-36; Docket No. 48-2 at ECF p. 21; Docket No. 48-3 at ECF p. 24). Ms. Greenbank takes issue with this testimony because the majority of documents on the Supplemental Log were sent or received by these individuals. Moreover, Ms. Greenbank argues, these deponents also refused to answer questions regarding factual matters occurring after the filing of the Complaint and regarding Great American's reliance on the advice of counsel for its good faith defense.

         Thus, Ms. Greenbank seeks an order compelling Defendant to produce documents and answer deposition questions. Specifically, Ms. Greenbank seeks an Order that Defendant: (1) produce all documents identified in the Supplemental Privilege Log in their narrative form[2], without redaction; (2) produce all internal documents and communications, which originated after the filing of the Complaint and are responsive to Plaintiff's Requests for Production in their native form, without redaction, including the Claim Note File and the Underwriting File; (3) produce Charlotte Bloxsom, Meriwether Moore, and Marlena Barcus for a second deposition in Evansville, Indiana; and (4) be sanctioned in the amount of Ms. Greenbank's attorneys' fees and costs incurred relating to the Motion to Compel and the taking of the second depositions of Bloxsom, Moore, and Marcus. (Docket No. 49).

         The parties were unable to resolve the dispute informally. The Court has held at least seven telephonic discovery conferences in this litigation (see, e.g., Docket No. 34, Docket No. 40, Docket No. 43, Docket No. 46, Docket No. 70, Docket No. 72, and Docket No. 75), both on matters addressed in this briefing and a host of other issues. The issues in this motion remain contested for the Court's review.

         I. ANALYSIS

         a. Standard

         If parties cannot informally resolve a discovery dispute, Federal Rule of Civil Procedure 37 provides a vehicle for the aggrieved party to request an order from the court compelling discovery. See Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002); see also S.D. Ind. Local Rule 37-1. District courts have broad discretion in matters relating to discovery. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (citing Packman v. Chicago Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001)).

         Federal Rule of Civil Procedure 26(b)(1) sets the standard for the scope of general discovery, providing that:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: 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.

         A party moving to compel production carries the initial burden of establishing, with specificity, that the requested documents are relevant. West v. Miller, 2006 WL 2349988, at *2 (N.D. Ill. Aug. 11, 2006) (citing United States v. Farley, 11 F.3d 1385, 1390 (7th Cir. 1993)). If that burden is met, the burden then shifts to the non-movant to show the impropriety of the request. Id. at *7.

         Great American does not contest the relevancy of the majority of the documents in the Supplemental Privilege Log, thus unless otherwise noted the Court will turn to consider whether Great American has met its burden to show the impropriety of Ms. Greenbank's requests and, if so, if Ms. Greenbank can overcome that burden.[3]

         a. Supplemental Privilege Log #1-Claim Notes

         Most of Ms. Greenbank's briefing is scattershot and references large ranges of Great American's Supplemental Privilege Log for each argument, but she has a few particular arguments that she makes as to only the Claim File (Docket No. 48-9 at ECF p. 1, Supplemental Privilege Log #1). The Court agrees with one of those arguments. (Docket No. 50 at ECF p. 18). When describing the Claim Note File in the Supplemental Log, Great American lumps multiple claim notes in one row, omits the identity of the “sender, ” i.e., the person creating the note, and instead identifies the persons as “Various;” omits the identity of the “Receiver” and generally cites “Great American employees and outside counsel for Great American;” does not include dates of the redact notes; and fails to reasonably describe the subject matter as the “Description” section provides no specificity. (Docket No. 48-9 at ECF p. 1). For example, the Court cannot discern if all the redacted Claim notes were pre-suit or if some were post-suit. Moreover, it appears that there is a typo as the description indicates that the “Redacted claim notes were created in the ordinary course of business, but instead created with the primary motivating purpose to aid in litigation.” (Id.).

         A privilege log must be made on a document-by document basis and include:

(1) The name and job title or capacity of the author(s)/originator(s);
(2) The names of all person(s) who received the document or a copy of it and their affiliation (if any) with the producing party;
(3) A general description of the document by type (e.g., letter, memorandum, report);
(4) The date of the document; and
(5) A general description of the subject matter of the document.

In re. Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Prods. Liab. Litig., 129 F.Supp.2d 1207, 1218-19 (S.D. Ind. 2001).

         Great American has produced a large portion of the Claim File, but has redacted twenty pages (GAAC 1688-1708) based on a single entry on its privilege log. Moreover, that single entry provides insufficient information for the Court to assess the privilege claims and the merit of Ms. Greenbank's arguments against those privilege claims. Thus, the Court ORDERS Great American to provide an Amended Supplemental Privilege Log by December 11, 2019, that provides further detail as to its privilege assertions for GAAC 1688-1708. If necessary, given the various senders and, assumedly, various dates, Great American's amended log must include multiple rows for the claim notes so that the necessary information described above can be included in a way that permits Ms. Greenbank and this Court to conduct a meaningful review. If-in light of the guidance provided in this entry and the additional information in the amended, supplemental log-Ms. Greenbank still believes that any privileges are improperly invoked, then the parties must meet and confer regarding Ms. Greenbank's specific objections. If that meet and confer does not resolve the issue, then each party may select up to three claim notes for Great American to produce by December 18, 2019, for an in camera review. If the Court finds that any of these six documents is not privileged, Great American shall produce all documents from GAAC 1688-1708 unredacted.

         Given the insufficiency of the Claim Notes privilege log entry, it is difficult for the Court to address Ms. Greenbank's argument that the entire Claim File was created in the ordinary course of business and thus, neither the attorney-client privilege nor the work-product doctrine apply. However, the parties should keep in mind some general principles upon their further review of this issue. “Determining what is ‘prepared in anticipation of litigation' has both a temporal and causation element . . . [W]ork product is defined as those materials produced because of the anticipation of litigation.” B.F.G. of Illinois, Inc. v. Ameritech Corp., 2001 WL 1414468, *3 (N.D. Ill. 2001). It is not persuasive to argue, generically, that an entire claim file is maintained in the ordinary course of business as this overlooks that claim files are maintained over time and as it becomes evident that some prospect of litigation or some articulable claim is likely to lead to litigation entries within the claim file are no longer made in the ordinary course of business. Moreover, Great American has stated-and the evidence submitted with this briefing confirms-that it has already provided large portions of the Claim File to Ms. Greenbank. Thus, if Great American adequately asserts privileges as to the claim notes in the amended log, then Ms. Greenbank must describe, with specificity, why specific portions of the Claim File were maintained in the ordinary course of business.

         b. ...

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