Opinion
Civil Action 1:20-cv-02580-WJM-NYW
01-14-2022
ALBERT SACK, Plaintiff, v. COLORADO FARM BUREAU INSURANCE COMPANY, Defendant.
DUGAN & CAMPBELL, PLLC HEATHER CAMPBELL, ESQ. ATTORNEYS FOR PLAINTIFF S/ELLIS MAYER ELLIS MAYER, ESQ. NATHAN DUMM & MAYER, P.C. ATTORNEYS FOR DEFENDANT
DUGAN & CAMPBELL, PLLC HEATHER CAMPBELL, ESQ. ATTORNEYS FOR PLAINTIFF S/ELLIS MAYER
ELLIS MAYER, ESQ. NATHAN DUMM & MAYER, P.C. ATTORNEYS FOR DEFENDANT
JOINT STATUS REPORT
In Compliance with Section IV of the Court's Civil Practice Standards, the Parties contacted the Court's chambers at 8:30 a.m. on October 5, 2021, to discuss a discovery dispute. The Parties submit the following Joint Status Report regarding that dispute.
1. Object of the Dispute: Defendant's Privilege Log
Plaintiff's Position : Defendant's Privilege Log is deficient.
Defendant disclosed 1085 pages in its Initial Disclosures labeled as Sack0001-Sack1085. Defendant's Privilege Log included on the Initial Disclosure Pleading lists the documents redacted as “Various.” Defendant did not identify any documents that contained redactions by bates label or date of the document. [Ex. 1, Defendant's Initial Disclosures]. Moreover, the redactions were done in white instead of black, making it extremely difficult to determine where information had been redacted. [Ex. 2, Example of redactions in white].
Authority :
Fed. R. Civ. P. 26(b)(5) provides that when a party withholds information otherwise discoverable by claiming that information is privileged the party must expressly make the claim, describe the nature of the documents, communications or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged, will enable other parties to assess the claim. The privilege log must describe “the precise reasons the materials are subject to the privilege asserted.” Tuft v. Indemnity Ins. Co. of N. Am., 2020 WL 8899950 *5 (D. Colo. June 26, 2020). “A ‘blanket claim' as to the applicability of the privilege/work product doctrine does not satisfy the burden of proof.” Tuft at 5, citing McCoo v. Denny's, Inc., 192 F.R.D. 675, 680 (D.Kan.2000).
Defendant's Position:
Defendant's Disclosure specifically asserts a claim of privilege and gives sufficient information to assess that privilege. The documents provided do not contain unmarked whited out information but instead specifically contain redacted areas expressing the exact privilege at the exact portion of the notes where the privilege is asserted, for example, “Attorney Client Communication” within the white out redacted area.
Authority:
Defendant has complied with F.R.C.P. 26(a)(5)(A)(i), and F.R.C.P. 26(a)(5)(A)(ii) by provided materials with clear and specific objections with the redactions. There is actually no standard for a privilege log, except as set forth in the Federal Rules of Civil Procedure 26(a)(5), which reads as follows:
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
Emphasis supplied
Conferral and attempts to resolve:
Plaintiff's counsel sent correspondence to defense counsel on June 21, 2021 requesting a “revised privilege log that lists any redaction, including information redacted in white, by page number along with a reason for the redaction with specificity that the law and court rules require.” [Ex. 3, 6/21/21 email to defense counsel]. Defense counsel responded that the privilege log was adequate. [Ex. 4, 6/28/21 letter to plaintiff's counsel]. Plaintiff's counsel renewed their request that defense counsel “provide a privilege log as soon as possible that lists by bates number, pages that contain information that has been redacted and the basis for that redaction” on July 21, 2021. [Ex. 5, 7/21/21 letter to defense counsel]. Defense counsel responded that his “methodology for redactions and privilege log is sound” and that he had “not been challenged in the past for this system.” [Ex. 6, 7/27/21 letter to plaintiff's counsel]. On August 3, Plaintiff's counsel asserted for the “third time that [Defendant's] privilege log and ‘redaction methodology' does not sufficiently identify documents that contain redactions.” [Ex. 7, 8/3/21 and 8/5/12 emails to defense counsel]. Defense counsel responded on August 6, 2021 that Defendant's Privilege Log was sufficient. [Ex. 8, 8/6/21 letter to plaintiff's counsel].
Defendant's position as to conferral:
On September 25, 2020, Defendant submitted to Plaintiff Defendant's F.R.C.P. 26(a)(1) Disclosures [ECF 47.3]. The discovery cut-off was May 12, 2021. Plaintiff waited until June 21, 2021, 9 months after first being produced and one month after the discovery cut-off to first assert any issues related to Defendant's method of redaction and privileges asserted. Despite the lateness of the request for additional disclosures, Defendant did supplement the disclosures and withdrew the redactions from before the time the lawsuit was filed. In addition, when it was discovered that a document was missing from the file, the document was also disclosed without redactions.
2. Object of Dispute: Redactions in claim notes labeled Sack0815-0819.
Plaintiff's Position :
Plaintiff's counsel does not believe that some or all of the information withheld in claim notes labeled Sack0815-0819 was properly redacted based on attorney client privilege. [Ex. 9, Sack0815-0819]. These pages contain claim notes from September 9, 2019 through February 19, 2020 a time during which defense counsel maintains he “was simply the portal from which the independent medical examinations and biomechanical evaluation were obtained” and, therefore, presumably no legal advice was given during that time. [Ex. 6]. However, it is difficult to determine whether this information was properly withheld based upon Defendant's current privilege log. As such, Plaintiff is requesting an in-camera review of these 5 pages by the Court.
Authority :
Attorney-client privilege does not attach to every communication or document merely because an attorney is involved in the communication or drafted the document. Tuft at 5. Instead, the privilege protects communications between an attorney and client relating to legal advice. Alliance Const. Solutions, Inc. v. Dept. of Corrections, 54 P.3d 816, 864 (Colo. 2002) citing West v. Everson, 33 P.3d 191, 196 (Colo. 2001).
Defendant's Position:
Defendant's office was retained prior to suit being filed to coordinate two independent medical examinations and a biomechanical analysis. Defendant redacted minimal redactions related to direct communications so as to preserve and not waive the attorney client privilege. Plaintiff has waited until after the discovery cutoff to go on a fishing expedition to assert that Defendant counsel acted as an adjuster in this matter.
Authority:
Wesp v. Everson, 33 P.3d 191, 33 P.3d 191, 193, 2001 Colo. LEXIS 878, *1, 2001 Colo. J. C.A.R. 4869, involved attorney-client communications that occurred in the presence of third-parties but were still upheld as privileged.
Because the purpose of the privilege is to encourage clients to confide in their attorneys, it applies only "to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential." Lanari v. People, 827 P.2d 495, 499 (Colo. 1992); see also D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993) (noting that there must be circumstances indicating the intention of secrecy for a communication to be privileged); People v. Tippett, 733 P.2d 1183, 1192 (Colo. 1987) (stating that communications must be "private or secret" to be privileged).
Wesp v. Everson, 33 P.3d 191, at 197Alliance Constr. Solutions, Inc. v. Dep't of Corr., 54 P.3d 861, 865, 2002 Colo. LEXIS 776, *10-11 indicates that
Because the effectiveness of legal representation depends in part on the attorney's ability to gain a full understanding of the factual scenario underlying the representation, we have concluded that HN5 the privilege protects not only information and advice communicated from the attorney to the client, but also communications to the attorney to enable him to give sound and informed legal advice.Id. at 865, cites omitted.
Conferral and attempts to resolve:
Plaintiff's counsel sent correspondence to defense counsel on July 21, 2021 asserting that there was no basis for redacting claim notes from the time frame of September 9, 2019 through February 19, 2020 contained in claim notes Sack0815-0819 and requesting that Defendant provide unredacted copies of those 5 pages. [Ex. 5]. Defense counsel refused. [Ex. 6]. Plaintiff's counsel reiterated that request on August 3 and 5, 2021. [Ex. 7]. On October 1, 2021, again asserted the request for unredacted copies of those claim notes on October 1, 2021. [Ex. 10, 10/1/21 letter to defense counsel].
Defendant's position as to conferral:
The October 1, 2021 letter raised for the first time whether imbedded links contained in the claim file contained information had been disclosed, what appears to be a missing report referenced in the claim notes was disclosed, and requested records reviewed pertaining to the Plaintiff from an entirely separate claim file could be disclosed. At the time of the preparation of this Status Report Defendant intends to respond.
3. Object of Dispute: Ongoing obligation to supplement disclosures.
Plaintiff's Position :
Plaintiff's counsel has requested on numerous occasions that Defendant provide the claim file and any other documentation Defendant has generated based on its continuing obligation to evaluate Plaintiff's claim or in the alternative, if Defendant is claiming that some or all of that information is privileged, to please provide a privilege log that complies with the rules.
Defendant has refused to provide any documentation or information past the date Plaintiff filed suit and/or a privilege log covering that time frame.
Authority:
An insurer's duty of good faith and fair dealing continues unabated during the life of the insurer-insured relationship, including through a lawsuit or arbitration between an insured and the insurer. Meadows v. Electric Ins. Co., 20216 WL 7868824 *8 (D. Colo. June 30, 2016).
Defendant's Position:
Between April 1, 2020 and the date suit was filed, Plaintiff provided no additional medical records or bills until and for the first time in a Supplemental Disclosure served on September 30, 2021, ironically including for treatment that occurred in May and June of 2021 and bills dating back to December of 2020. This means that the entirety of the claim file post suit would have nothing further to adjust, i.e., a claim for benefits, and would be focused entirely on this litigation.
When the claim process from the Plaintiff's point of view comes to a complete halt after the decisions made in April of 2020, there can be nothing in the insurance claim file post filing of suit that has any bearing on this suit, and Plaintiff for that same reason cannot show a substantial need for materials protected under F.R.C.P. 26(a)(3).
Authority:
USCS Fed Rules Civ Proc R 26(a)(3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Conferral and attempts to resolve:
Plaintiff's counsel requested the claim files through present time in its June 28, 2021 email. [Ex. 3]. Defense counsel clearly stated in his responsive letter of June 28, 2021, that “[w]e are not going to provide you with claims information pas[t] the date that you filed suit.” [Ex. 4]. Plaintiff's counsel has renewed the request for this information/documentation on July 21, August 3 and 5, and October 1, 2021. [Ex. 5, 7, and 10].
WHEREFORE, Plaintiff respectfully requests that the Court set a hearing to consider the discovery issues set forth above or, in the alternative, address this limited discovery dispute at the Final Pretrial Conference set for October 12, 2021.