Opinion
2:22-cv-00438-CDS-NJK
10-25-2022
ESTEVAN ALVARADO-HERRERA, Plaintiffs, v. ACUITY A MUTUAL INSURANCE COMPANY, Defendants.
ORDER [DOCKET NO. 23]
Nancy J. Koppe United States Magistrate Judge.
Pending before the Court is Plaintiff's motion to compel discovery. Docket No. 23. Defendant filed a response in opposition. Docket No. 26. Plaintiff filed a reply. Docket No. 27. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully below, the motion to compel is DENIED without prejudice.
Much of the parties' motion practice is devoted to arguing which standards and analysis apply to their dispute. Judges within this District have ruled that at-issue waiver in the bad faith insurance context is governed by the Hearn test. See Wood v. Nautilus Ins. Co., 2021 WL 5415330, at *2-3 (D. Nev. Nov. 18, 2021) (citing Spargo v. State Farm Fire & Cas. Co., 2017 WL 2695292 (D. Nev. June 22, 2017)). The Court finds that these standards apply to the assertion of at-issue waiver in this case, so future conferral efforts and any future motion practice should track these standards.
The briefing at times appears to conflate concepts. Plaintiff's motion is predicated on an at-issue waiver, but it appears Plaintiff's arguments that an attorney acted as a “super-adjuster” may be predicated on an assertion that an attorney's non-legal business work is not privileged at all. See, e.g., Docket No. 27 at 10; see also Residential Constr., LLC v. Ace Prop. & Cas. Ins. co., 2006 WL 3149362, at *12 n.7 (D. Nev. Nov. 1, 2006) (“Where an attorney acts as a claims adjuster, claims process supervisor, or claim investigation monitor, and not as a legal adviser, the attorneyclient privilege does not apply”). To the extent Plaintiff is challenging whether communications are privileged as a threshold matter, he must do so more clearly moving forward.
In addition, Plaintiff's motion did not engage with specific information or documents in dispute, but instead sought a blanket ruling requiring disclosure. In reply, Plaintiff indicates that he is seeking guidance through issuance of a “preliminary decision” to inform future discovery efforts. See Docket No. 27 at 10-11. It is not entirely clear what it is that Plaintiff is seeking and the Court declines to resolve important privilege issues based on generalized argument. Cf. Wood, 2021 WL 5415330 at *3 (addressing whether specific communications regarding four re-tenders must be produced). Any future motion practice must more clearly explain what it is that Plaintiff is seeking.
Plaintiff asserts that privilege issues must be addressed prior to depositions, which are not currently before the Court. Docket No. 27 at 11. That is not correct. Depositions may proceed subject to the ordinary objection and conferral process. See Cardinali v. Plusfour, Inc., 2018 WL 7502644, at *4 (D. Nev. Oct. 9, 2018).
Accordingly, the motion to compel is DENIED without prejudice.
IT IS SO ORDERED.