Opinion
No. CIV 03-0727 MV/RHS
March 17, 2004
THIS MATTER having come before the Court on Defendant's Motion to Compel Responses to Defendant's Interrogatories 3, 4, 5, 6 and Requests for Production 2 and 3, filed February 24, 2004 [Doc. No. 24] and the Court having considered the pleadings on file in the above captioned cause, the arguments and authorities propounded by the respective parties and being otherwise fully advised in the premises, finds that the motion is well taken in part and it will be granted in part.
On January 25, 2002, Wayne Widman, et al, filed a lawsuit in state court against Defendant Hobbs Rental Corporation ("HRC"). HRC tendered the Summons and Complaint to Union Standard Insurance Company, demanding defense and indemnity. Plaintiff Union Standard Insurance Company ("USIC") provided HRC with a defense in the underlying suit with a full reservation of rights. USIC then filed its Complaint by Insurer for Declaration of Rights under Insurance Policy against HRC in this court.
Interrogatories 3, 4, 5 and 6
HRC's Interrogatories 3, 4, 5, and 6 request USIC to identify all other claims for lawsuits it has defended in which USIC claimed it did not owe a defense or indemnity obligation under an insurance policy issued to other insureds, including a description of how each claim was resolved. USIC objected to these interrogatories on the grounds that they do not request information which is relevant or reasonably calculated to lead to relevant evidence and that they are unduly burdensome. HRC argues that this information is relevant because " it has the potential to reveal that Plaintiff has a pattern and/or practice of generally denying a defense or indemnity to its clients with the type of policy at issue."
Under Fed.R.Civ.P. 26, information is "relevant" if it is reasonably calculated to lead to the discovery of admissible evidence. United States v. Security Bank Trust Co., 661 F.2d 847, 851 n. 6 (10th Cir. 1981). Although defendant has moved to file an amended answer and counterclaim, this case presently includes no bad faith allegations against USIC. The information regarding other claims or lawsuits requested in these interrogatories is not relevant to the issues before the Court and is not reasonably calculated to lead to relevant evidence. HRC's motion to compel answers to interrogatories 3, 4, 5 and 6 will therefore be denied.
Request for Production 2
This request seeks "all documents, opinions, memos, manuals or other written material you have used to determine coverage under the provisions of your policy identified in paragraph 10 of your complaint for any claim since January 1, 1998." Plaintiff objects to this request asserting "attorney/work product" and also contends that it seeks information which is irrelevant and not reasonably calculated to lead to relevant evidence. Even in the absence of an amended answer and counterclaim, this information that is sought by this request may have a bearing on the subject matter of this action and Defendant's blanket relevancy objection is not well taken.
The work product doctrine is designed to protect material "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. . . . or agent). . . ." Fed.R.Civ.P. 26(b)(3). That rule prevents discovery of an attorney's work product unless (1) the discovering party can demonstrate substantial need for the material and (2) the discovering party is unable to obtain the substantial equivalent of the material by other means without undue hardship. Frontier Refining Inc., et al v. Gorman-Rupp Co., Inc., 136 F.3d 69 (10th Cir. 1998).
The party seeking to assert the attorney-client privilege or the work product doctrine as a bar to discovery has the burden of establishing that either or both is applicable. Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir. 1984). Plaintiff has not met this burden. This request appears to include both documents which may have been "prepared in anticipation of litigation" and documents which may not be work product. No privilege log was submitted in support of Plaintiffs contention that these documents should be protected from discovery. Plaintiff will be required to produce all documents responsive to this request with the exception of those documents which are fully described and specifically meet the requirements of the attorney client privilege or the work product doctrine.
Request for Production 3
This request seeks Plaintiff's claim and underwriting file for HRC. Plaintiff has provided the underwriting file but has not produced the claim file because Plaintiff contends that it contains attorney work product and information that it is not relevant nor reasonably calculated to lead to relevant evidence. Plaintiff's relevancy objection to this request is not well taken. Plaintiff filed a privilege log in support of its contention that this request seeks documents that are protected by attorney-client privilege or work product immunity to this request, however, the privilege log submitted fails to adequately describe those documents. Plaintiff, as the party seeking to assert an evidentiary privilege, has the burden of establishing its applicability, U.S. v. Knox, 124 F.3d 1360, 1365 (10th Cir. 1997), and it has not supplied the Court with sufficient information to enable the Court to determine that each element of the privilege is satisfied. All documents responsive to this request, with the exception of those documents which the Plaintiff can demonstrate are entitled to the protection of the attorney-client privilege or the work product doctrine, should be produced.
A privilege log addressing any documents responsive to Requests for Production 2 and 3 which Plaintiff seeks to protect from discovery should be provided by Plaintiff which identifies each document involved by request number, date, author, addressees (if any), distribution of the document, number of pages in the document, general nature of the document, and basis for asserting the attorney client privilege or protection of the work product doctrine.
IT IS THEREFORE ORDERED that Defendant's Motion to Compel Responses to Defendant's Interrogatories 3, 4, 5, 6 and Requests for Production 2 and 3, filed February 24, 2004 [Doc. No. 24] is GRANTED IN PART and DENIED IN PART. Defendant's motion to compel responses to interrogatories 3, 4, 5, and 6 is denied. Defendant's motion to compel responses to production requests 2 and 3 is granted, however, documents which are identified as work product or attorney client communications may be withheld pending the Court's review of a detailed privilege log describing each document withheld from production.
IT IS FURTHER ORDERED that on or before March 26. 2004. Plaintiff shall deliver to Defendant and the Court a privilege log made in conformity with this Order which sets out all documents upon which a claim of attorney client or work product privilege has been made.