United States District Court, S.D. Indiana, Evansville Division
ORDER ON PLAINTIFF'S MOTIONS TO COMPEL AND
DEFENDANT'S MOTION FOR ORAL ARGUMENT
Matthew P. Brookman United States Magistrate Judge
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.
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
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).
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).
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).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).
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.
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, 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).
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
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)).
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.
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.
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.
Supplemental Privilege Log #1-Claim Notes
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.).
privilege log must be made on a document-by document basis
(1) The name and job title or capacity of the
(2) The names of all person(s) who received the document or a
copy of it and their affiliation (if any) with the producing
(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
In re. Bridgestone/Firestone, Inc., ATX, ATX II, &
Wilderness Tires Prods. Liab. Litig., 129 F.Supp.2d
1207, 1218-19 (S.D. Ind. 2001).
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
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