Opinion
Case No. 2:07-cv-60.
November 26, 2007
OPINION AND ORDER
This matter is before the court on the plaintiff's objections (Doc. No. 34) to the order of Magistrate Judge Terence P. Kemp (Doc. No. 33) entered on October 11, 2007, granting in part and denying in part plaintiff's motion to compel discovery. Specifically, plaintiff objects to the portion of the order denying plaintiff's motion to compel the production of a memorandum prepared by State Farm employee Ute Kenmir at the direction of State Farm in-house counsel Byron Hansbro. The magistrate judge concluded that the memorandum was protected from disclosure under the work product doctrine. Order, pp. 3-4.
Plaintiff first objects to the conclusion of the magistrate judge that the application of the work product doctrine was a matter of federal law. Order, p. 3. Plaintiff contends that the application of the work product doctrine is governed by the substantive law of Ohio, not federal procedural law. In the alternative, he requests this court to certify to the Ohio Supreme Court the question of whether the work product doctrine should be governed by the substantive law of Ohio in diversity cases, or to certify the issue to the Sixth Circuit Court of Appeals as an interlocutory appeal under 28 U.S.C. § 1292(b).
This court agrees with the magistrate judge's conclusion that federal law governs work product claims in diversity cases because the doctrine involves a matter of procedural rather than substantive law. See In re: Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) ("In a diversity case, the court applies federal law to resolve work product claims[.]"); Baker v. General Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000) (same);Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n. 10 (10th Cir. 1998) (work product doctrine is governed, even in diversity cases, by the uniform federal standard contained in Fed.R.Civ.P. 26(b)(3)); United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 966 (3d Cir. 1988); Scotts Co. LLC v. Liberty Mutual Ins. Co., No. 2:06-cv-899 (unreported), 2007 WL 1500899 (S.D.Ohio May 18, 2007) (King, M.J.); Zigler v. Allstate Ins. Co., No. 1:06-cv-2112 (unreported), 2007 WL 1087607 (N.D.Ohio April 9, 2007).
An interlocutory appeal of the issue is unwarranted because the Sixth Circuit clearly determined in In re Powerhouse Licensing that federal law governs the application of the work product doctrine. It would also be pointless to certify this question to the Ohio Supreme Court. Under the guidelines announced in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) and Hanna v. Plumer, 380 U.S. 460 (1965), it is the federal court presiding over the diversity action which decides whether an issue is one of substance, requiring the application of state law, or of procedure, requiring the application of federal law. In addition, this court is bound to follow In re Powerhouse Licensing as precedent. In light of this court's determination that the work product doctrine requires the application of federal law, the court need not address plaintiff's arguments as to whether the memorandum would be entitled to protection under Ohio law.
Plaintiff argues that the magistrate judge erred in concluding that Ms. Kenmir's memorandum was protected by the work product doctrine. Under Fed.R.Civ.P. 26(b)(3),
a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
Under Rule 26(b)(3), the party seeking discovery must show that the materials are relevant to the subject matter of the litigation and are not privileged. Toledo Edison Co. v. G. A. Technologies, Inc., Torrey Pines Technology Div., 847 F.2d 335, 339 (6th Cir. 1988). If this burden is met, then the burden shifts to the objecting party to show that the material was prepared in anticipation of litigation or for trial. Id. If the objecting party meets its burden, then the burden again shifts to the requesting party to show that the requesting party has a substantial need of the materials in preparation of the party's case, and that the requesting party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Id. at 339-40.
The magistrate judge, citing Fine v. Bellefonte Underwriters Ins. Co., 91 F.R.D. 420, 422 (S.D.N.Y. 1981), noted that documents produced during an evaluation of an insurance claim as part of the ordinary course of business of responding to the claim are not considered work product, whereas investigations undertaken in light of an "identifiable resolve to litigate" are protected under the doctrine. Order, p. 3. He concluded that while Ms. Kenmir's investigation of plaintiff's complaint was not privileged, her memorandum, prepared at the request of in-house counsel, was protected. Order, pp. 3-4. The magistrate judge noted that State Farm had both a subjective and a reasonably objective fear of litigation at that point based on the letter from plaintiff's counsel indicating that if the matter was not settled, litigation would ensue. Order, p. 4.
Plaintiff points to Ms. Kenmir's note of September 1, 2006, in the State Farm Activity Log which refers to her meeting on that date with Attorney Gordon Arnold, a partner at plaintiff's former law firm, followed by the words "Note of discussions will be separate memo." Plaintiff argues that this indicates an intent on the part of Ms. Kenmir to prepare the memorandum of her conversation as part of the ordinary course of business. However, State Farm indicates that the only memorandum drafted by Ms. Kenmir was the memorandum she was directed to prepare by counsel. The fact that she had earlier thoughts about writing a memorandum of her conversation with Mr. Arnold does not alter the fact that the memorandum actually prepared was at the direction of counsel in anticipation of possible litigation. This court agrees with the reasoning of the magistrate judge. State Farm has satisfied its burden of showing that the memorandum was prepared in anticipation of litigation.
Plaintiff also argues that he has shown a substantial need for the memorandum and that he is unable without undue hardship to obtain the substantial equivalent of the information in the memorandum by other means. He quotes State Farm's response to Interrogatory 24 which refers to State Farm's receipt of a redacted copy of plaintiff's memorandum dated March 3, 2006, and the letter of plaintiff's counsel. He contends that Ms. Kenmir maintained an investigation file which has not been produced in discovery, and that the magistrate judge erred in failing to conduct an in camera inspection of this investigation file. State Farm responds that Ms. Kenmir never had a copy of plaintiff's redacted memorandum, and that her copy of counsel's letter was discarded, but that plaintiff already has a copy of that letter. State Farm denies that a file of the investigation was maintained by Ms. Kenmir, and states that the only documents relevant to the investigation which are in existence are the memorandum she prepared at counsel's direction, and the comments in the State Farm Activity Log contained in plaintiff's claim file, which have been produced in discovery.
The magistrate judge could not conduct an in camera review of a non-existent file. Likewise, this court cannot compel the production of documents which do not exist. Ms. Kenmir's comments on the State Farm Activity Log are insufficient to indicate that she maintained any notes of her interviews with witnesses. Plaintiff cannot claim prejudice from the destruction of the letter from plaintiff's counsel, since plaintiff has a copy of the letter. Plaintiff's comment that the copy of the letter from counsel which Ms. Kenmir discarded may have contained notes or a fax cover is pure speculation.
After reviewing the interrogatories on file, the magistrate judge remarked that plaintiff had not yet submitted interrogatories requesting information obtained by Ms. Kenmir during her investigation. Order, p. 4. The magistrate judge further noted that plaintiff was free to depose Ms. Kenmir concerning her investigation, and that if, during the deposition, "she has little or no recollection of her activities, the memorandum may well be producible." Order, p. 5. This court agrees with the magistrate judge that there is no need to require the disclosure of the protected memorandum until these other avenues of discovery have been exhausted. Plaintiff has failed to meet his burden at this stage of the case of showing that he has a substantial need for the memorandum and that he cannot obtain the information gleaned by Ms. Kenmir in her investigation by other means.
The court concludes that the decision of the magistrate judge regarding the disclosure of Ms. Kenmir's memorandum is correct, and plaintiff's objections to that decision are denied. Plaintiff's alternative request for certification of the legal question regarding which law governs the work product doctrine to the Ohio Supreme Court and to the Sixth Circuit is denied.