Filed: Jun. 21, 2012
Latest Update: Jun. 21, 2012
Summary: OPINION AND ORDER FRANK H. McCARTHY, Magistrate Judge. This Opinion and Order resolves the discovery disputes presented in docket numbers 18, 19, 27, and 55. The matters have been fully briefed and a hearing was held before the undersigned United States Magistrate Judge on June 20, 2012. At the hearing counsel for the parties agreed that the court's decision on appropriate redactions from documents submitted for in camera review will resolve the pending discovery matters. The court has rev
Summary: OPINION AND ORDER FRANK H. McCARTHY, Magistrate Judge. This Opinion and Order resolves the discovery disputes presented in docket numbers 18, 19, 27, and 55. The matters have been fully briefed and a hearing was held before the undersigned United States Magistrate Judge on June 20, 2012. At the hearing counsel for the parties agreed that the court's decision on appropriate redactions from documents submitted for in camera review will resolve the pending discovery matters. The court has revi..
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OPINION AND ORDER
FRANK H. McCARTHY, Magistrate Judge.
This Opinion and Order resolves the discovery disputes presented in docket numbers 18, 19, 27, and 55. The matters have been fully briefed and a hearing was held before the undersigned United States Magistrate Judge on June 20, 2012. At the hearing counsel for the parties agreed that the court's decision on appropriate redactions from documents submitted for in camera review will resolve the pending discovery matters.
The court has reviewed the documents submitted in camera and has made decisions about what information must be produced and what may remain redacted. In making these decisions, the court was guided by the following principles.
Attorney Client/Work Product
In a bad faith case Plaintiff is entitled to discover the insurance company's handling and analysis of his claim. This discovery includes:
—all facts the insurance company considered in its analysis, even if those facts were provided to the insurance company by the insurance company's attorney;
—the insurance company's analysis of the facts;
— the insurance company's understanding of its legal obligations to the insured;
—the conclusions reached by the insurance company based on its analysis of the facts and its legal obligations.
See generally, Darzenkiewicz v. Jackson, 904 P.2d 66 (Okla. 1994)(writ of mandamus issued to permit discovery of claims file and claims manual in UM bad faith case); Buzzard v. McDaniel, 736 P.2d 157, 159 (Okla. 1987)(insurer's actions in bad faith case are assessed in light of all facts known and knowable concerning the claim at the time insurer was requested to perform contractual duties).
It is appropriate, on the basis of the attorney-client privilege or work product protection, to shield from discovery the insurance company's communications seeking or obtaining legal advice from its attorney including the attorney's analysis of the claim. However, the insurance company must disclose its own analysis of the claim. In other words, the insurance company is entitled to seek and obtain legal advice from its attorney, but that does not relieve the insurance company of either its obligation to make its own analysis of the claim or its obligation to disclose that analysis.
The foregoing applies to all discovery of Defendant insurance company in this case.
Personal or Confidential Information of Non-Parties
The in camera documents include information that appears to have been generated by a name search for Plaintiff's name, "John Johnson," which returned information that matched claims for either John or Johnson. [ESIS 0263-0266, 0269-0272, 0278-0281]. The last names, addresses, date of birth, and telephone numbers were redacted for people other than Plaintiff. The in camera documents also include a summary of claims that involve claimants other than Plaintiff. [ESIS 0454-0459]. The redactions from this document are information that involves unrelated cases. These redactions were appropriate.
Proprietary Information
Dollar amounts were redacted from policy premiums, reserve amounts, estimated losses and expenses. This information is not subject to a privilege. These redactions were not appropriate.
Specific Redactions
The following chart sets forth the court's order as to what must be produced and what may remain redacted.
Page Number Material Defendant is Required to Produce
Old Republic 0004 Produce entire page.
Old Republic 0124 Produce entire page.
Old Republic 0155 No further production required.
Old Republic 0154 No further production required.
ESIS 0031 Produce entire page.
ESIS 0032 Produce entire page. (the document produced in camera
contains redactions of premium amounts)
ESIS 0055 Produce entire page.
ESIS 0263-0266 No further production required.
ESIS 0269-0272 No further production required.
ESIS 0278-0281 No further production required.
ESIS 0291-0292 Produce entire page.
ESIS 0315 Produce entire page.
ESIS 0355-0356 Produce entire page.
ESIS 0378 Produce entire page.
ESIS 0443 Produce entire page.
ESIS 0454-0459 On page 0455, produce redacted portion of entry related to
John Johnson, no other production is required for these
pages.
ESIS 0464 The redaction covers two sentences. The first sentence may
remain redacted. The second sentence must be produced.
ESIS 0463 The figures related to Defendant's legal costs and
Defendant's estimated legal costs may remain redacted. The
rest of the document must be produced.
ESIS 0521 One sentence of this page may remain redacted. The first
sentence after the heading, "Strategy/Litigation Mgmt/Case
Disposition may remain redacted. The rest of the document
must be produced.
ESIS 0522 One sentence of this page may remain redacted. The first
sentence after the heading, "Strategy/Litigation Mgmt/Case
Disposition may remain redacted. The rest of the document
must be produced.
ESIS 0523 One sentence of this page may remain redacted. The first
sentence after the heading, "Strategy/Litigation Mgmt/Case
Disposition may remain redacted. The rest of the document
must be produced.
ESIS 0524 Produce entire page.
ESIS 0525 The first redacted paragraph/block on this page must be
produced. The rest of the page may remain redacted.
ESIS 0526 The first redacted paragraph/block on this page must be
produced. The rest of the page may remain redacted.
ESIS 0527 In the first redacted paragraph/block, the first two sentences
must be produced, the rest of the paragraph/block may
remain redacted.
The second redacted paragraph/block may remain redacted.
The third redacted paragraph/block must be produced.
ESIS 0528 No further production required.
ESIS 0529 Produce entire page.
ESIS 0530 No further production required.
ESIS 0534-0536 No further production required.
ESIS 0537 The first redacted paragraph/block may remain redacted.
In the second redacted paragraph/block, the first two
sentences may remain redacted. The remaining two
sentences must be produced.
In the third redacted paragraph/block, the first sentence and
part of the second sentence must be produced-the redaction
may begin after the word "done." The last two sentences of
that paragraph/block must be produced, beginning with the
word "we," and continuing to the end of the paragraph/block.
ESIS 0538 In the section marked "reserve rationale," the portion between
the word "information and the word "at" may be redacted.
The remainder of the page must be produced.
ESIS 0539 No further production required.
ESIS 0540 This page contains four paragraph/blocks.
All of the information in the first paragraph/block on the page
must be produced.
No further production is required for the second and third
paragraph/blocks.
All of the information in the fourth paragraph/block must be
produced.
ESIS 0541 In the first redacted paragraph/block, the first 12 lines of the
paragraph/block may remain redacted. The remainder of the
paragraph/block must be produced, beginning with the
phrase, "at this time."
The remainder of the page must be produced.
ESIS 0542 The first redacted paragraph/block must be produced.
No further production is required for the rest of the page.
ESIS 0543 No further production required.
ESIS 0544 Produce entire page.
Conclusion
Docket numbers 18, 19, 27, and 55 are GRANTED in PART and DENIED in PART as provided herein. The parties are to bear their own costs for these motions.
SO ORDERED.
