AMY TOTENBERG, District Judge.
This matter is before the Court on Defendants Tauber & Balser, P.C., Sheldon Zimmerman, Mark Murovitz, and Paul Dopp's (collectively the "T & B Defendants" or "T & B") Motion for Clarification [Doc. 137]. On July 5, 2013, the Court denied Plaintiff's motion to compel the production of certain communications between Carlock Copeland & Stair, LLP ("Carlock Copeland"), the T & B Defendants' counsel, and CAMICO Mutual Insurance Company ("CAMICO"), the T & B Defendants' professional liability insurer. The Court held that from August 25, 2009 onward, such communications were protected work-product and prior to August 25, 2009, CAMICO's communication with Carlock Copeland were protected by virtue of the common interest privilege doctrine.
In response to the T & B Defendants' Motion for Clarification, Plaintiff urges the Court to reconsider its decision regarding the common interest privilege. In response, the T & B Defendant's stand by the Court's decision regarding the common interest privilege and go further to argue that documents created before August 25, 2009 were also protected work product.
After a thorough and fresh review of the documents at issue and the parties' arguments for and against production, the Court again concludes that the subject documents are not subject to compelled disclosure. The Court finds however, that the work product doctrine provides a more helpful approach to resolving the issues regarding the pre-August 25 documents. Accordingly, with few exceptions, the T & B Defendants have no duty at this time to produce the documents listed on their
On July 5, 2013, the Court ruled on a series of discovery motions in this matter. (Doc. 135.) In particular, the Court ruled that the work product doctrine did not attach to communications with CAMICO, the T & B Defendants' professional liability insurer, until August 25, 2009, the date on which Plaintiff's counsel first contacted the T & B Defendants' counsel about Plaintiff's potential claim against them. (Doc. 136 at 54-55.) The Court then ruled, however, that communications between Carlock Copeland, counsel for the T & B Defendants, and CAMICO (even those predating August 25, 2009) are protected by the common interest privilege. (Doc. 135 at 56 (citing CAMICO Privilege Log, Doc. 98-1 (Nos. 2-6, 8, 11, 15-16, 18-19, 21-26, 28-29)).)
On July 17, 2013, the T & B Defendants filed a Motion for Clarification. (Doc. 137.) The T & B Defendants sought clarification regarding their obligation to produce certain communications with their professional liability insurer, CAMICO. The T & B Defendants recognized that some documents on CAMICO's privilege log are identical to some on their own. (Doc. 137 at 2.) Thus, they proposed the uncontroversial position that if a document in CAMICO's possession is protected, the same document in the T & B Defendants' possession is also protected.
In response, Plaintiff asked the Court to reconsider its decision that these documents are protected in the first place. (Doc. 142.) Plaintiff puts forth several arguments to support his position, arguments that eluded the Court on Plaintiff's original Omnibus Motion to Compel. For example, Plaintiff suggested that the common interest rule applies only to protect against waiver those communications shared directly with the attorney of another member of the community of interest. Here, the communications were between an attorney and a claim specialist at CAMICO. Plaintiff also argued that CAMICO and Carlock Copeland did not have an attorney-client relationship themselves, nor was there a tripartite attorney-client relationship with them and the T & B Defendants. Finally, Plaintiff argued that a strong common interest only arose between T & B and CAMICO once CAMICO determined it had a duty to defend and indemnify the T & B Defendants.
The Court directed the T & B Defendants to respond to Plaintiff's arguments and provide an updated privilege log indicating the precise CAMICO documents in dispute. (Doc. 145.) The Court essentially gave the T & B Defendants and CAMICO "a renewed chance ... to designate communications between them (and with counsel) as privileged and support this designation in the face of Plaintiff's attacks." (Id. at 5.) The Court warned that "[a] failure to sufficiently support the privilege will waive the privilege as to such communications." (Id.)
On August 12, 2013, the T & B Defendants filed a response to Plaintiff's arguments. (Docs. 155.)
Then on August 25, 2013, Plaintiff inexplicably filed a "Notice of Request for Oral Argument and Permission to File Sur-Reply to the T & B Defendants' Motion for Clarification." (Doc. 156.) The Court construed this Notice as a Motion, but shortly thereafter, Plaintiff filed an actual Motion for Oral Argument and Motion to File Sur-reply [Doc. 157]. The Court
The Court begins its analysis with the T & B Defendants' assertion that the work product protection applies to CAMICO communications created before August 25, 2009. After concluding that the work product protection extends to most of the documents on the T & B Defendants' CAMICO privilege log, the Court then considers and rejects the notion that Plaintiff has a substantial need for the protected work product. Next, the Court briefly considers the T & B Defendants' and Plaintiff's arguments regarding the common interest privilege. Finally, the Court addresses Plaintiff's arguments wedged into his sur-reply.
In the Court's July 5, 2013 Order, the Court held that the work product protection does not apply to CAMICO communications prior to August 25, 2009. The T & B Defendants urge the Court to find that the work product doctrine attached as soon as CAMICO assigned Carlock Copeland to represent Tauber & Balser, P.C. In his sur-reply, Plaintiff does not dispute the T & B Defendants' renewed call for expanded work product protection and does not argue that he has a substantial need for these documents.
Rule 26(b)(3)(A)(ii) protects from discovery "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)" unless the requesting 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." Fed.R.Civ.P. 26(b)(3)(A)(ii). "[T]he burden is on the party withholding discovery to show that the documents should be afforded work-product [protection]." Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 654 (S.D.Fla.2009).
In its July 5, 2013 Order, the Court considered this work product doctrine issue in the context of the flurry of numerous other discovery issues the parties presented. The Court held that the T & B Defendants failed to satisfy their burden to justify the application of the work production doctrine for communications created prior to August 25, 2009. In particular, the Court explained that the communications at issue appeared to be part of CAMICO's ordinary course of business. This, coupled with the lack of any showing that litigation was imminent, and in fact evidence
The T & B Defendants correctly point out that litigation need not be "imminent" in a temporal sense for the work product protection to attach. United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. Unit A Feb. 1981) ("[L]itigation need not necessarily be imminent, as some courts have suggested, [cits], as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.").
In Carver, a district court in this circuit considered whether insurance claims files were protected work product and explained how insurance investigation documents "straddle both ends" of the work product doctrine definition. Id. The court
Following this approach, the Court finds that the disputed documents are, for the most part, not discoverable. First, the Court notes that the situation here is not like those often seen in cases like Carver. Unlike a typical insurance initiated investigation, which focuses on what the insurer should do (e.g., claims evaluation and whether to resist the claim or reimburse the insured), the investigation here focused, even at the outset, entirely on what the insured should do in response to a potential legal claim against it. Thus, there is no "shift" from claims assessment to litigation anticipation. From the start, CAMICO assigned Carlock Copeland to counsel the insured regarding potential legal liability. (See Wilson Decl. ¶¶ 5-6, Doc. 99.) There is no indication that the disputed communications that followed were ever connected to the insurer's claim evaluation and instead, they appear primarily related to Carlock Copeland's engagement. And Carlock Copeland's engagement appears to have nothing to do with claims evaluation and everything to do with a potential lawsuit. Moreover, the Court reviewed the documents identified on the privilege log and provided to the Court for in camera inspection. This review confirms that, for the most part, documents identified on the T & B Defendants CAMICO privilege log were created primarily to secure the advice of counsel and aid in possible future litigation. See also Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D. 663, 668 (N.D.Ga. 2008) ("[F]iles generated during the investigation of third party claims are made in anticipation of litigation and are not discoverable.") (quoting Taylor v. Temple & Cutler, 192 F.R.D. 552, 558 (E.D.Mich. 1999)).
With this analysis in mind, the Court turns to specific documents identified on T & B's Defendants' CAMICO Log (Doc. 155-1). First, the Court notes that the work product doctrine protects documents made in anticipation of litigation and created "by or for another party or its representative including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Thus, even communications identified on the T & B privilege log created by CAMICO (the Defendants' insurer) or the Defendants themselves are candidates for work product protection. Based on the description in the privilege log, the Court finds that all the CAMICO documents are protected work product except
In his memorandum of law in support of his original Omnibus Motion to Compel (Doc. 88-1) and Motion to Compel the Production of Documents from CAMICO (Doc. 89-1), Plaintiff suggested without much elaboration that he has a "substantial need for the requested documents and cannot obtain them from other sources because the T & B entity and the T & B Shareholders are represented by the same counsel, Carlock Copeland, and are all effectively controlled by the Habif Defendants, which also possesses and controls T & B's corporate server, client workpapers, email server and paper files." (Doc. 89-1 at 24; Doc. 88-1 at 23.) This statement fails to address specifically why Plaintiff has a substantial need for the CAMICO documents.
Moreover, Plaintiff made no argument that he has a substantial need for such documents in his sur-reply in response to the T & B Defendants' re-assertion of the work product doctrine.
In any case, the Court sees no reason why Plaintiff would have a substantial need for the documents at issue. Plaintiff can take the deposition of CAMICO representatives and inquire into CAMICO's knowledge related to the underlying claim. See Stern v. O'Quinn, 253 F.R.D. 663, 685-66 (S.D.Fla.2008) (finding that plaintiff failed to demonstrate requisite substantial need because he could employ interrogatories, conduct interviews and seek other discovery as it relates to the facts sought); see also Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir.1984) (recognizing that a party did not face undue hardship when it could obtain the necessary information by deposing a witness, rather than obtaining protected work product). For these reasons, the Court finds that Plaintiff cannot overcome the T & B Defendants' assertion of work product protection identified above in Part II.A.
The common interest privilege is an exception to the general rule that disclosure of documents protected by the work product doctrine or attorney client privilege constitutes a waiver of the protection. Parties who share "strong common interests" may also share privileged or protected material without waiving the privilege or protection. See McKesson Corp. v. Green, 266 Ga.App. 157, 597 S.E.2d 447, 452 (2004) (recognizing this rule in the context of the work product doctrine); see also Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 656-657 (S.D.Fla.2009) (applying a similar rule to protected work product under federal law).
As the Court previously recognized, an insurer's communications with the attorney assigned to represent the insured under
Relying on this reasoning, the Court previously held that the protection applicable to the subject documents was not waived by virtue of sharing between CAMICO and Carlock Copeland. Plaintiff makes several arguments challenging this decision.
First, Plaintiff argues that that the common interest rule applies only to protect against waiver those communications shared directly with the attorney of another member of the community of interest. Plaintiff did not present any binding authority, and the Court found none, supporting this limitation. In particular, McKesson does not impose this requirement, and at least one district court has applied the common interest rule to find that disclosure among trade association members (non-lawyers) did not result in waiver. Broessel v. Triad Guar. Ins. Corp., 238 F.R.D. 215, 220 (W.D.Ky.2006).
Second, Plaintiff argues that CAMICO and Carlock Copeland did not have an attorney-client relationship themselves, nor was there a tripartite attorney-client relationship with them and the T & B Defendants. In light of the Court's holding regarding the work product doctrine above, this point is irrelevant.
Finally, Plaintiff argues that a strong common interest only arose between T & B and CAMICO once CAMICO determined it had a duty to defend and indemnify the T & B Defendants. Plaintiff has pointed to no authority requiring an actual claim file (or determination regarding duty to defend) before an insurer and insured share a strong enough common interest to warrant sharing protected matter. As the court in Broessel recognized, "the common interest does not require or imply that an actual suit is or ever will be pending." Broessel, 238 F.R.D. at 220 (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, American Bar Association Section of Litigation at 203 (4th ed. 2001).)
Considering the Court's revised position on the work product protection related to CAMICO communications and the analysis above, the Court finds that all the documents listed on the T & B Defendants' revised privilege log (Doc. 155-1) are protected from disclosure except the checks and auto-replies noted above in Part II.A.
In Plaintiff's sur-reply, he does not address the T & B Defendants' request to expand the work product protection to
Second, Plaintiff argues that the T & B Defendants waived any common interest privilege by "apparent[ly] intentional[ly] produc[ing] ... documents" and by failing to provide sufficient description of documents in their privilege log. (Doc. 157-1 at 9.) Plaintiff provides no support for his assertion regarding the apparent intentional production of documents. If Plaintiff is referring to the T & B Defendants' production of documents in response to this Court's July 5, 2013 Order, or any other Order of this Court, it is doubtful that such production would be deemed a waiver of a privilege or protection. See Collaboration Props., Inc. v. Polycom, Inc., 224 F.R.D. 473, 478 (N.D.Cal.2004) (explaining that judicially compelled disclosure does not generally waive the privilege). And the Court, having reviewed the T & B Defendants' privilege log, finds it satisfies specificity requirements under Rule 26(b)(5)(A)(ii) of the Federal Rules of Civil Procedure.
Finally, Plaintiff resurrects his argument that the crime-fraud exception bars the application of a privilege to protect CAMICO documents. Now, however, Plaintiff appears to base this argument on newly discovered evidence. In any case, it is improper to insert this argument in a sur-reply. The Court reiterates that, if Plaintiff wishes to pursue another line of discovery arguments, he should refer to the Federal Rules, Local Rules and the Court's guidelines.
For the foregoing reasons, the Court
Finally, the Court takes this opportunity to point out the obvious. The discovery disputes in this case appear to be ongoing. As noted above, Plaintiff appears ready to pursue several arguments to support further production of documents. Plaintiff has also indicated that he plans to move to add parties, which suggests that even more discovery may be on the horizon.
Based on the inevitability of discovery disputes in this matter, the current vacancies at this district court, and the Court's extremely busy docket, the Court believes that the appointment of a special master is the most expeditious way to bring this case to a swifter resolution. See Fed.R.Civ.P.
The Court
The Court will also consider referring this case to a Magistrate Judge for discovery purposes, although the Court is not at this time confident that the ongoing, complex discovery issues in this case can be "effectively and timely addressed by an available ... magistrate judge of the district." Fed.R.Civ.P. 53(a)(1)(C).
Jones v. Tauber & Balser, P.C., et al. Case No. 1:11-CV-02995-AT CAMICO PRIVILEGE LOG The T & B Defendants understand that CAMICO claims all the listed documents are protected. No. Bates Numbers Date Author Description of Contents Protection Claimed by T & B Defendants 1 CCS 017166 01-23-09 CAMICO Check No. 42928 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege 2 CCS 017117 02-26-09 CAMICO Check No. 43555 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege 3 CCS 017118 04-02-09 CAMICO Check No. 44277 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege 4 CCS 017119 07-23-09 CAMICO Check No. 45945 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege 5 CCS 017120 12-04-09 CAMICO Check No. 48067 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege 6 CCS 017121 12-30-09 CAMICO Check No. 48527 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege Produced inadvertently — Rule 502 7 CCS 017122 04-22-10 CAMICO Check No. 50195 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege Produced inadvertently — Rule 502
8 CCS 017123 07-15-10 CAMICO Check No. 51475 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege Produced inadvertently — Rule 502 9 CCS 017124 11-11-10 CAMICO Check No. 53185 to Work product doctrine/in anticipation Carlock, Copeland & of litigation Common Stair, LLP interest privilege Produced inadvertently — Rule 502 10 CCS 017125 12-15-10 CAMICO Check No. 53654 to Work product doctrine/in anticipation Carlock, Copelan d & of litigation Common Stair, LLP interest privilege Produced inadvertently — Rule 502 11 CCS 017126-017132 05-12-08 Mark Murovitz E-mails to Joe Kingma Work product doctrine/in anticipation and Steve Saunders of litigation Common transmitting Verso's 8-K interest privilege Attorney-client privilege 12 CCS 017133-017137 05-12-08 Mark Murovitz E-mails to Steve Saunders Work product doctrine/in anticipation and Joe Kingma forwarding of litigation Common draft letter to interest privilege Attorney-client former management on privilege Laurus default and Falcon funding 13 CCS 017269-017275 05-12-08 Steve Saunders E-mail forwarding Verso's Work product doctrine/in anticipation 8-K to Joe Kingma of litigation Common interest privilege 14 CCS 017138-017141 05-12-08 Steve Saunders E-mail to Joe Kingma Work product doctrine/in anticipation forwarding draft letter to of litigation Common former management on interest privilege Lauras default and Falcon funding 15 CCS 017142-017216 05-12-08 Steve Saunders E-mail to Joe Kingma Work product doctrine/in anticipation forwarding first day of litigation Common bankruptcy filings interest privilege 16 CCS 017216-017221 05-20-08 Joe Kingma E-mail to Steve Saunders Attorney-client privilege Work and Mark Murovitz forwarding product doctrine/in anticipation acknowledgement of litigation Common interest letter and representation privilege letter to Murovitz 17 No Bates number 05-22-08 Joe Kingma Letter to Steve Saunders Attorney-client privilege Work (with copy to Mark Murovitz) product doctrine/in anticipation providing Joe of litigation Common interest Kingma's legal analysis of privilege Communications with discussions with John non-testifying consultants Movie and Mark Murovitz on accounting issues 18 CCS 017222-017223 09-22-08 Carlock Copeland Invoice N o. 163316 to Work product doctrine/in anticipation CAM89-90 CAMICO of litigation Common interest privilege 19 CCS 017224-017231 02-05-09 John Rogers Update letter to Steve Attorney-client privilege Work Saunders and Mark product doctrine/in anticipation Murovitz of litigation Common interest privilege 20 CCS 017232 02-05-09 Steve Saunders E-mail to John Rogers Work product doctrine/in anticipation expressing thanks for up-date of litigation Common interest privilege 21 CCS 017233-017235 03-05-09 John Rogers Letter to Steve Saunders Attorney-client privilege Work and Mark Murovitz about product doctrine/in anticipation producing workpapers of litigation Common interest privilege 22 CCS 017236 03-05-09 Steve Saunders E-mail to John Rogers Work product doctrine expressing thanks for Common interest privilege update
23 No Bates number 03-19-09 John Rogers Letter to Mark Murovitz Attorney-client privilege Work and Steve Saunders product doctrine/in anticipation about production of subjective of litigation Common interest acceleration clause privilege memo 24 CCS 017237 03-019-09 Steve Saunders E-mail to John Rogers Work product doctrine/in anticipation expressing thanks for of litigation Common update interest privilege 25 No bates number 05-13-09 John Rogers Letter to Mark Murovitz Attorney-client privilege Work and Steve Saunders product doctrine/in anticipation about filing of motion to of litigation Common interest compel document privilege production 26 CCS 017238-017246 05-18-09 John Rogers E-mail to Steve Saunders Work product doctrine/in anticipation about subpoena of litigation Common interest privilege 27 No Bates number 08-17-09 Lindsey Hettinger Letter to Steve Saunders Attorney-client privilege Work and John Rogers and Mark Murovitz about product doctrine/in anticipation withdrawal of motion to of litigation Common interest compel document privilege production 28 No Bates number 08-26-09 Joe Kingma and Letter to Steve Saunders Attorney-client privilege Work John Rogers and Mark Murovitz about product doctrine/in anticipation liquidating trustee's of litigation Common interest threat to assert claims privilege 29 CCS 017247 08-26-09 Steve Saunders Out of office reply Work product doctrine/in anticipation of litigation Common interest privilege 30 CCS 017248-017249 09-02-09 John Rogers Email to and from Steve Work product doctrine/in anticipation Saunders about retaining of litigation Common an accounting consultant interest privilege 31 CCS 017250-017251 12-22-08 Carlock Copeland Invoice N o. 166608 to Work product doctrine/in anticipation CAM91-92 CAMICO of litigation Common interest privilege 32 CCS 017252-017253 02-08-09 Carlock Copeland Invoice N o. 168758 to Work product doctrine/in anticipation CAM93-94 CAMICO of litigation Common interest privilege 33 CCS 017254-017256 03-19-09 Carlock Copeland Invoice N o. 169872 to Work product doctrine/in anticipation CAM95-97 CAMICO of litigation Common interest privilege 34 CCS 017257-017263 06-18-09 Carlock Copeland Invoice No. 173554 to Work product doctrine/in anticipation CAM98-104 CAMICO of litigation Common interest privilege 35 CCS 017264-017268 09-24-09 Carlock Copeland Invoice No. 179396 to Work product doctrine/in anticipation CAMICO of litigation Common interest privilege 36 CCS 017276 05-18-09 Steve Saunders Out of office reply Work product doctrine/in anticipation of litigation Common interest privilege 37 CCS 017277 06-05-09 Steve Saunders Out of office reply Work product doctrine/in anticipation of litigation Common interest privilege 38 CCS 017278 05-20-09 Steve Saunders E-mail to John Rogers Work product doctrine/in anticipation and Mark Murovitz expressing of litigation Common thanks for May interest privilege 18, 2009 update
39 No Bates number 06-05-09 Lindsey Hettinger Letter to Steve Saunders Attorney-client privilege Work and Mark Murovitz about product doctrine/in anticipation motion to compel of litigation Common interest privilege