Opinion
CIVIL ACTION NO: 98-0786, SECTION: "E" (4)
June 30, 1999
MINUTE ENTRY
Plaintiff, Joseph Beal, filed this Motion to Compel Discovery (doc. #52) against the Treasure Chest Casino, LLC, Boyd Gaming Corporation, Boyd Central Region, Inc., Boyd Kenner, Inc. and Boyd Louisiana L.L.C. (hereinafter collectively referred to as " the Casino Interests"). Beal seeks to compel the following discovery items:
Beal propounded interrogatories on November 18, 1998, are the subject of the current Motion.
1. The production of non-party employees medical benefits information including whether the non-party employees exceeded their maximum allowable annual medical benefits;
2. The production of certain documents written by the casino interests' insurance adjuster, purportedly regarding the analysis or assessment of the casino's obligation to pay maintenance and cure;
3. The production of an eight page letter written by E. Gregg Barrios, an attorney employed by the Casino interests;
4. The production of a fax transmittal sheet prepared by Michael Parr the onsite claims administrator for the Casino interests to Bill Werner of Boyd Gaining Legal.
This Court ordered production of the contested documents for in camera review.
I. Non-party employee benefits information
Beal's interrogatories seek information from the defendants's third party insurance administrator. He seeks production of the "name, hire date, end of employment date and circumstances of the end of employment for all Treasure Chest Employees who reached the first year maximum pay-out on health care insurance claims." The defendants objected, citing Judge Africk's prior discovery ruling regarding relevancy.
Judge Africk previously denied a Motion to Compel which sought all actuarial information maintained by the third party administrator on the grounds that the information sought was irrelevant.
Plaintiff now argues that the requested information is relevant because it might disclose a pattern or practice by the Casino interests of discriminating against other employees, like him, who exceeded the maximum annual payout on health care benefits. In support of his position, Beal referred the Court to a series of cases. See Johnson v. Southwestern Bell Telephone Company, 819 F. Supp. 578 (E.D. Texas 1993) (Discovery was not at issue. Instead, while considering a motion for summary judgment, the Court looked at whether the defendant articulated a non-discriminatory reasons for terminating the plaintiff); LaDolce v. Bank Administration Institute, 585 F. Supp. 975 (D.C. Ill 1984) (Discovery was not at issue. In a suit by a discharged employee who sued for age discrimination, the Court considered a motion strike portions of the complaint and an in limine motion.); Massie v. Indiana Gas Co., 752 F. Supp. 261 (S.D. Ind. 1980) (Discovery was not in issue. Court denied employees motion for partial summary judgment on whether a prima facie case under ERISA had been established).
This Court is of the opinion that the cases relied upon by Beal are not applicable to the present discovery issue, since they do not address the privacy interest that non-party employees have regarding their medical records and benefit information.
Like medical records, non party employee medical benefit documents may contain intimate facts of a personal nature which are well within the ambit of materials entitled to privacy protection. See Paul. P v. Verniero 170 F.3rd 396, 401 (3rd Cir. 1998) (where court address the privacy interest of employee medical records). Beal's interest in the non-party employees medical benefits cannot be said to "supersede" their privacy interest. Accordingly, this Court SUSTAINS the objections of the Casino interests.
II. Documents Authored by Third party Insurance Administrator.
Beal seeks the production of certain letters or documents authored by Jana Brown, an adjuster with the Casino interests third party claims administrator, Creative Risk Controls. The Casino interests objected to production of the requested documents and produced a privilege log detailing the nature of their objection. The subject documents are identified by bates numbers TCC 00012-13, 00015-16, 00474-76, 00518 and 00528-529.
A. TCC 00012-13 is a report written by Jana Brown to her file which details the steps she had taken to determine the nature and status of their insured's claim as well as his physical condition.
B. TCC 00015-16 is a letter written by Brown to Tom O'Brien of Adams and Reese requesting a legal opinion regarding how the claim should be classified.
C. TCC 00474-76 is a report written by Brown to Zurich-American, the underwriter for the Casino interests.
D. TCC 00518 is a letter written by Brown to Barrios, of Adams and Reese. It was written on November 27, 1996.
E. TCC 00528-00529 is a letter written by Brown to Barrios of Adams and Reese and dated October 23, 1996 requesting an opinion.
The work-product doctrine shields from discovery the materialsprepared by or for an attorney in preparation for litigation. Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M. D. La. 1992). It protects two categories of materials: ordinary work-product and opinion work-product. Snowden v. Connaught Lab. Inc., 137 F.R.D. 325, 330-32 (D.Kan. 1991); See generally Upjohn Co. v. U.S., 449 U.S. 383, 400-02, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
However, the Doctrine is not an umbrella that shades all materials prepared by a lawyer, or agent of the client. It focuses only on materials assembled and brought into being in anticipation of litigation. Excluded from the work-product doctrine are materials assembled in the ordinary course of business, or pursuant to public requirement unrelated to litigation. United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984). It also does not extend to the underlying facts relevant to the litigation. See generally Upjohn Co. v. United States, 499 U.S. 383, 395-96, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
The test for the work-product privilege is whether the documents were prepared "in contemplation of litigation." N.L.R.B. v. Sears Roebuck Co., 421 U.S. 907, 94 S.Ct. at 1518 (1975). The mere fact a report deals with facts, opinions, and recommendations that later may be the focus of litigation does not establish that there was the expectation of litigation when the document was drafted. Senate of Puerto Rico v. U.S. Dept. of Justice, 823 F.2d 574, 586. We now turn to an analysis of the documents and whether they should be shielded from discovery pursuant to the work product doctrine.
1. TCC 00012-13. The Report to File
On January 10, 1997, Jana Brown a claims adjuster with the Casino interests third party administrator prepared a document entitled "Report to file". This document generally discusses the status of Beal's claims, his statements and his physical condition. The defendants do not address why the work product doctrine should apply to the contents of the document.
In determining whether a document was made in anticipation of litigation, the primary focus is on the reason or purpose for creating the document. The subject document was clearly created by Ms. Brown to diary or memorialize the steps she had taken during her investigation of Beal's claim.
It is the very nature of an insurer's business to investigate and evaluate the merits of claims. Atlanta Coca-Cola Bottling, Co. v. Transamerica Ins. Co., 61 F.R.D. 115 (D.C.Ga. 1972). It cannot be said that an insurer's evaluation of a routine claim is undertaken in anticipation of litigation, though litigation often does result from denial of a claim. Atlanta Coca-Cola Bottling, Co. v. Transamerica Ins. Co., 61 F.R.D. 115 (D.C.Ga. 1972).
Accordingly, since the Report to File was assembled in the ordinary course of business, the Court finds that document TCC 00012-13 cannot be shielded from discovery.
2. TCC 00015-16, Letter written by Brown to O'Brien
The second document is a letter written by Brown to Tom O'Brien, an attorney at Adams and Reese. This letter requests a legal opinion regarding how Beal's claim should be classified. While the Casino interests objected to producing the document on the grounds that the letter was "correspondence with counsel", rot all correspondence with an attorney are subject to nondisclosure protection. McEwen v. Digitran Systems, Inc. 155 F.R.D. 678 (D.Utah 1994).For example, in U.S. v. Gulf Oil Corp, 760 F.2d 292 (Temp.Emer.Ct.App. 1985), the court held that certain documents did not enjoy work product immunity from disclosure if the documents were not created to assist plaintiff in litigation of its declaratory judgment action. In Gulf Oil, the Court noted that the documents were created in order to allow auditors to prepare financial reports which would satisfy requirements of federal security laws.
Likewise, in the case at bar, the subject document was created to obtain assistance in how to classify the Beal claim. While legal opinions of the attorneys may be protected under certain circumstances, the requests for the legal opinion is not. This document is not shielded by the work-product doctrine.
3. TCC 00474-76, Brown report to Zurich-American Underwriter.
The subject document is a report written by Brown to an underwriter at Zurich-American. Reporting to the underwriter is a normal part of a claims adjuster's business.
While the Casino interests point to the fact that this document was created twelve days after Beal notified Treasure Chest Casino that it retained an attorney, the document itself does not indicate that Brown expected litigation to ensue. To the contrary, the document indicates that neither Beal nor the Casino interests had retained litigation counsel. The only reference to retained counsel was regarding the retention of opinion counsel who was retained to determine Beal's legal status. Again, Brown was engaging in the normal business of an adjuster when she reported on the claims to the underwriter. The court concludes therefore that TCC 00474-476 is subject to discovery.
4. TCC 00518, Brown to Barrios letter.
The subject document is written on November 27, 1996. It is a transmittal letter from Brown to Greg Barrios, an attorney at Adams and Reese. While the Casino interests argue that it discusses recommendations made by counsel, the court is of the opinion that this characterization is at best an overstatement of the documents contents.
Document TCC 00518, does not convey any confidential communication and is therefore not privileged. To the extent that it conveys factual information, that information is protected by neither the attorney-client privilege nor the work product doctrine. Letters that merely transmit documents to or from an attorney, even at the attorney's request for purposes of rendering legal advice to a client, are neither privileged nor attorney work product. TCC 00518 is therefore subject to disclosure.
5. TCC 00528-00529. Letter from Brown to Barrios
The final document authored by Brown which is subject to review is a letter to Barrios of Adams and Reese. This letter is dated October 23, 1999 an contains a listing of the relevant facts, which is not protected by the work-product doctrine. Senate of Puerto Rico, supra. Like the documents discussed in subsection 2 of this opinion, document 00528-00529 requests an opinion as to Beal's legal status. For the same reasons detailed in subsection 2, document TCC 00528-529 is not shielded from discovery.
III. TCC 00511-0517, Eight Page Letter Authored by E. Barrios.
On December 11, 1996, Barrios forwarded a letter to William B. Werner, Esq. Associate General Counsel of Boyd Gaming Corporation. It provides a factual analysis of the Beal claim including the medicals, a legal analysis and recommendations. Jana Brown and Michael Par are carbon copied on the document.
The Casino interests objected to the production of this document identified as TCC 00511-00517 on the grounds that it is protected by the work product doctrine and the attorney-client privilege. In its memorandum, the Casino interests also asserted that the document is protected by the attorney client privilege.
Parr is the onsite claims administrator for the Casino interests. Brown, the claims adjuster for the third party insurance claims administrator, was provided a carbon copy, or "CC," of the letter. While the letter contains a legal opinion the opinion was rendered to advise the Casino interests on whether Beal had a Jones Act claim entitling him to maintenance and cure as opposed to a personal medical claim.
The work product doctrine only insulates a lawyer's research, analysis of legal theories, mental impressions, notes, and memoranda of witnesses1 statements from an opposing counsel's inquiries when the documents are produced by or for an attorney preparing for litigation. Upjohn Co. v. United States, supra; United States v. El Paso Co., 682 F.2d 530, 543 (5th Cir. 1982), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984).
The letter further states that Beal had not filed suit, but had only asserted the maintenance cure claim. It does not suggest or hint at the prospect of litigation. To the contrary, the letter indicates that Beal's maintenance and cure claim could be favorably resolved. This letter was not drafted in anticipation of litigation, and therefore, is not shielded by the work product rule.
However, the defendants have also asserted that the document is protected by the attorney-client privilege, which prevents an attorney from disclosing any information, either voluntarily or by compulsion, conveyed to him by the client for the purpose of seeking legal advice. See Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577 (1976).
Since this document was an advisory letter written by outside counsel to in-house counsel, the attorney-client privilege would clearly apply. Further, the fact that the document was "CC'd" to Brown and Par does not destroy the privilege, since they share a close, common legal interest with the Casino interests. See Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985).
IV. TCC 01393. Safety /Loss Control Fax Transmittal
The final document subject to consideration is a fax transmittal from Michael J. Parr a member of the Safety/Loss Control department of the Treasure Chest Casino in Kenner and Bill Werner of Boyd Gaming Legal. The Fax Cover Sheet indicates that a total of nine pages were faxed on December 13, 1996. In the Message portion of the fax, Parr indicates his agreement with the recommendations of Adams and Reese. He acknowledges that his condition was originally treated as a personal illness but should be treated as a seaman claim under the Jones Act.
The fax cover sheet discusses as with most of the other documents how the casino should classify the claim. It does not detail the recommendations of Adams and Reese but simply recommends an adoption of the recommendation. Parr is reporting to Werner regarding how the claim should be characterized. It is not work product protected.
Therefore, the Motion to Compel Production of Documents TCC 00012-13, 00015-16, 00474-76, 00528-529 and TCC 01393 IS HEREBY GRANTED. The Motion to Compel Document TCC 00511-0517 is HEREBY DENIED.