JAMES E. SEIBERT, United States Magistrate Judge.
This matter comes before the Court on Plaintiffs' Motion to Compel filed on January 24, 2014.
Plaintiffs are the co-administrators of the Estate of Joseph Porter, who was fatally shot on November 8, 2009, by Huntington police officer Ronnie Lusk. Defendant, Scottsdale Insurance Company, was the City of Huntington's insurer at the time of the shooting. This case arises from the settlement negotiations between Defendant and Plaintiffs in an underlying lawsuit against the City of Huntington and
Two weeks prior to the trial date in the underlying case, Plaintiffs filed the instant suit in the Circuit Court of Ohio County, West Virginia, on May 10, 2012. In the complaint, Plaintiffs allege that Defendant violated the West Virginia Human Rights Act by discriminating against Plaintiffs during settlement negotiations based upon their race. Defendant removed the case to this Court on June 13, 2012. On August 31, 2012, Plaintiffs appealed the jury verdict in the underlying case to the United States Court of Appeals for the Fourth Circuit. On October 4, 2012, the Court stayed these proceedings pending the exhaustion of Plaintiffs' appeals in the underlying action.
Plaintiffs' Motion to Compel.
Plaintiffs' Motion is granted in part because some of the withheld documents are not privileged, nor are they immune from discovery under the work product doctrine. However, the majority of the documents are privileged communications or protected work product and need not be disclosed by Defendant.
Plaintiffs contend that they are entitled to all of the documents withheld by Defendant from the underlying claim file on the basis of attorney-client privilege and work-product protection. Plaintiffs do not address whether the withheld documents actually qualify for protection under either the attorney-client privilege or the work-product doctrine. Instead, Plaintiffs raise several grounds for finding the privilege wholly inapplicable. First, Plaintiffs contend that Defendant procedurally waived its discovery objections by not specifically addressing each withheld document in its response brief. Substantively, Plaintiffs contend that they are analogous to first-party bad-faith claimants, and that as such, no attorney-client privilege or work-product protection attaches to the underlying claim file. Plaintiffs also argue that even if they are considered more like third-party claimants, all documents generated prior to the filing of this claim, on May 10, 2012, are discoverable pursuant to the decision of the West Virginia Supreme Court of Appeals in State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 370 n. 17, 508 S.E.2d 75, 86-87 (1998). Next, Plaintiffs contend that even if the Court finds that the documents qualify for work-product protection or the attorney-client privilege, they have a substantial need for the documents due to the unique nature of a Michael action. Finally, Plaintiffs argue that the nature of their allegations results in an implied waiver of both the attorney-client privilege and the work-product protection.
In responding to Plaintiffs' request for documents, Defendant withheld 595 documents from the underlying defendants' claim file and provided a very detailed privilege log. Plaintiffs nonetheless argue that Defendant waived its objections because it did not address each and every document in its response to Plaintiffs' motion to compel. Plaintiffs are correct that failure to make specific objections to discovery requests may result in a waiver of those objections and that a party cannot carry this burden with general allegations or blanket assertions that the privilege should apply. Shaffer v. Northwestern Mut. Life Ins. Co., 2006 WL 2432110 at *2 (N.D.W.Va. Aug. 21, 2006). However, here, Defendant complied with the requirements of both the Federal and Local Rules of Civil Procedure by providing a detailed privilege log. This is not a case where a party made generic assertions of privilege such that waiver of those objections is appropriate, and the Court will address the merits of the parties' positions.
Plaintiffs also argue that because this is a "straight discrimination action," they are entitled to enjoy broad discovery. It is true, as Plaintiffs assert, that courts often allow broader discovery in discrimination cases than normally allowed in other civil litigation and that "`the imposition of unnecessary limitations on discovery is especially to be avoided in Title VII cases,' because of the nature of the proofs required to demonstrate unlawful discrimination may often be indirect or circumstantial." Miles v. Boeing Co., 154 F.R.D. 117, 119 (E.D.Pa.1994) (quoting Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 55 (D.N.J.1985)). However, this principle concerns the scope of allowable discovery, i.e. what is considered relevant and therefore discoverable, and not, as Plaintiffs suggest, the applicability of the attorney-client privilege or work-product doctrine. Plaintiffs do not cite to any authority for the proposition that the standards for applying the attorney-client privilege or work-product doctrine are relaxed in a discrimination case. The case upon which they rely for this theory, State ex. rel. Westbrook Health Services, Inc. v. Hill, 209 W.Va. 668, 550 S.E.2d 646 (2001), did not hold that the attorney-client privilege was inapplicable simply because the case involved a discrimination claim; rather, the Westbrook Court found that the defendant had not established that the elements of the attorney-client privilege were met. Accordingly, the Court will apply the standard tests for determining whether the withheld documents in this case are protected, and therefore non-discoverable, and declines to establish a novel exception to those rules because this is a discrimination case.
Plaintiffs next urge the Court to apply the privilege rules applicable to first-party, rather than third-party, bad faith actions to this Michael action. "For definitional purposes, a first-party bad faith action is one wherein the insured sues his/her own insurer for failing to use good faith in settling a claim brought against the insured or a claim filed by the insured. A third-party bad faith action is one that is brought against an insurer by a plaintiff
Plaintiffs argue that because only first-party bad faith actions were recognized by the West Virginia Supreme Court of Appeals prior to the Michael Court's holding, Michael afforded first-party status to litigants, such as Plaintiffs, who bring claims against an insurance company for discriminatory settlement practices in violation of the West Virginia Human Rights Act. Plaintiffs' argument misapprehends the court's holding in Michael. The Court in Michael held that a third-party claim against an insurer brought under the WVHRA does not implicate the prohibition against third-party claims even though it is a third-party claim, not because it is a first-party claim.
Plaintiffs also liken their case to a first-party action, where a common law duty of good faith and fair dealing runs directly from an insurer to its insured, because in a Michael action, the statutory duty not to discriminate runs directly from the insurer to a discriminatee. However, Plaintiffs' argument proves too much. A party's status as a first-party or third-party claimant is determined by the contractual relationship between that party and the insurer in the underlying litigation, not whether a duty is owed to that party by the insurance company in the underlying litigation. See Loudin v. National Liability & Fire Ins. Co., 228 W.Va. 34, 716 S.E.2d 696 (2011) ("`First-party' claimant or `Insured' means an individual asserting a right to payment under an insurance policy or insurance contract arising out of the occurrence of the contingency or loss covered by such policy or contract.... `Third-party claimant' means any individual asserting a claim against any individual insured under an insurance policy or insurance contract of an insurer.") (internal citations omitted); Erie Ins. Prop. & Cas. Co. v. Johnson, 2011 WL 3607950 (S.D.W.Va. Aug. 15, 2011) ("The relevant inquiry for a common law bad faith claim is thus solely into the underlying contractual relationship between the parties.").
Plaintiffs fail to recognize that an insurer still owes third-party claimants a direct statutory duty not to engage in unfair claim settlement practices under the WVUTPA, notwithstanding the abolition of third-party lawsuits, because the Legislature simultaneously established an administrative process for third-party claimants to pursue administrative penalties against insurers for third-party unfair claim settlement practices. See W.Va.Code § 33-11-4a(b)-(j). Unfair claim settlement practices
Additionally, Plaintiffs cite two post-Michael cases, Loudin v. National Liability & Fire Ins. Co., 228 W.Va. 34, 716 S.E.2d 696 (2011) and Dorsey v. Progressive Classic Ins. Co., 232 W.Va. 595, 753 S.E.2d 93 (2013), for the proposition that the West Virginia Supreme Court of Appeals would now hold that Michael cases are first-party actions. However, nothing in Loudin or Dorsey supports this argument. Loudin dealt with the issue of a bad faith claim having characteristics of both a first-party claim and a third-party claim. The Court concluded that where a plaintiff purchased the insurance policy and was the named insured under the policy, a subsequent bad faith action was a first-party claim because to hold otherwise would be to treat the plaintiff as "a nonpremium paying claimant seeking coverage under a third-party's policy, when he, in fact, paid the premiums for the policy in question." Loudin, at 703. The Court emphasized that: "A third party claimant has no contract with the insurer ..., has not paid any premiums, has no legal relationship to the insurer or special relationship of trust with the insurer, and in short, has no basis upon which to expect or demand the benefit of the extra-contractual obligations imposed on insurers ... with regard to their insureds." Similarly, in Dorsey, the Court held that a guest passenger in a covered vehicle, who is covered as an insured person under the insurance policy, and who never asserted any claims against the named insured, but who only asserted a claim under the policy, is a first-party claimant. The Court in both cases concluded that the plaintiffs were first-party claimants because they asserted a contractual right to payment under an insurance policy.
Here, in contrast, Plaintiffs have no characteristics of first-party claimants. They never had an insurance policy with Defendant. They never asserted a right to payment under an insurance policy. Plaintiffs were not the insured in the underlying action and they never directly contracted with Defendant to provide insurance coverage. They were at all times third-party claimants with respect to Defendant. See Erie Ins. Prop. & Cas. Co. v. Johnson, 2011 WL 3607950 (S.D.W.Va. Aug. 15, 2011) ("In the present case, there was no contractual relationship between Erie and the Buckleys. Even if the Buckleys could recover directly from Erie under the first aid provision, this would not create the requisite contractual relationship between Erie and the Buckleys. Accordingly, the Buckleys cannot maintain a common law bad faith action against Erie."). In fact, the cases cited by Plaintiffs unequivocally define a first-party action as one in which the insured sues his own insurer for failing to use good faith in settling a claim filed by the insured and a
Having rejected Plaintiffs' reasons for disregarding Defendant's claims of privilege, the court will apply established principles of attorney-client privilege and work product doctrine to the discovery at hand. When the Court's jurisdiction is based upon diversity of the parties it applies state law regarding the attorney client privilege and federal common law to claims of work-product protection. See Fed.R.Evid. 501; Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 329 n. 2 (N.D.W.V.2006). "The party asserting either attorney client privilege or the work product doctrine bears the burden of establishing its applicability." Miller v. Pruneda, 2004 WL 3951292 at *2 (N.D.W.Va. Nov. 5, 2004); State ex rel. U.S. Fid. and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677, 688 (W.Va. 1995).
Under West Virginia law, "[i]n order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be identified to be confidential." Canady, 194 W.Va. at 442, 460 S.E.2d 677. (citing State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (W.Va.1979)). Importantly, the attorney-client privilege protects the substance of the communications, and, therefore, "it extends beyond the attorney to others who, at the attorney's direction, are aware of confidential information." Id. (citing United States v. (Under Seal), 748 F.2d 871 (4th Cir.1984)). Accordingly, privileged communications between an insured and the insured's attorney remain privileged even if they are repeated to the insurer. See State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457,
Here, Defendant seeks to withhold from production numerous documents on the basis of attorney-client privilege. These documents consist mainly of communications between the underlying defendants (the "insured"), claims handlers and employees of Defendant Scottsdale Insurance Company (the "insurer"), and the attorneys hired by Defendant to represent the insured in the underlying litigation. Most of the documents are emails between the insurer and the attorneys summarizing the underlying litigation and answering various legal questions. Defendant contends that these documents are protected by the insured's attorney-client privilege because all of the parties contemplated an attorney-client relationship during the course of the underlying litigation, the insured and insurer sought counsel from the attorneys on a variety of issues during the underlying case, and the parties intended that the communications be confidential. Defendant also asserts its own quasi attorney-client privilege pursuant to State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 370 n. 17, 508 S.E.2d 75, 86-87 (1998).
Plaintiffs, on the other hand, argue that Defendant does not have standing to raise the attorney-client privilege of the underlying insured, and that, at most, Defendant can assert its own quasi attorney-client privilege to protect the documents. However, the case cited by Plaintiffs' for this proposition, Kowalski v. Tesmer, 543 U.S. 125, 134, 125 S.Ct. 564, 570, 160 L.Ed.2d 519 (2004), is a case about third-party standing to bring a claim, and not about who can assert the attorney-client privilege. Plaintiffs cite no cases holding that an insurance company may not assert the insured's attorney-client privilege for documents in an insured's claim file. Cf. Medical Assurance, 213 W.Va. at 465-67, 583 S.E.2d 80 (holding that an insurance company could assert its insured's attorney-client privilege in a third-party bad-faith claim and discussing the inapplicability of the quasi attorney-client privilege to the facts of the case).
Plaintiffs' argument also displays a misunderstanding of the quasi attorney-client privilege first articulated by the WVSCA in State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 370 n. 17, 508 S.E.2d 75, 86-87 (1998). In Gaughan, which was a third-party bad-faith action, the plaintiff sought discovery from the defendant insurance company of the insured's claim file from the underlying action. The insured, who was the owner of the privilege, waived the privilege so that plaintiff could obtain discovery of the documents. Notwithstanding the release by the insured, the insurance company withheld numerous documents on the basis that the documents were protected by the insured's attorney-client privilege. After the state circuit court ordered production of the documents, the insurance company sought a writ of prohibition from the West Virginia Supreme Court of Appeals. The Court unambiguously rejected the minority view on the issue of whether the insurer could raise attorney-client privilege as to
Id. at 371, 508 S.E.2d 75 (quoting State ex rel. USF & G v. Canady, 194 W.Va. at 438, 460 S.E.2d 677). However, the Court also acknowledged that where an insurance company hires an attorney to represent its insured in the underlying litigation, the privilege ultimately belongs to the client and not to the insurance company. Therefore, because the client in Gaughan had waived the privilege, technically, the insurance company had no privilege to assert. On these unique facts, the Court created a quasi attorney-client privilege over documents in an insured's claim file that would otherwise be privileged as between the insured and the defense attorney, but which were no longer protected because the insured waived the privilege.
Moreover, in State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 465-66, 583 S.E.2d 80 (2003), the Court expressly rejected a similar argument that Gaughan stands for the proposition that an insurance company may only raise the less restrictive quasi attorney-client privilege to protect communications in its claim files between its insured and the insured's attorney. In Medical Assurance, a third-party bad faith claim, the plaintiff sought disclosure of communications between the insured, the law firm hired by the insurance company to represent the insured in the underlying litigation, and the claims handlers handling the underlying claim. The defendant insurance company asserted the insured's attorney-client privilege in resisting discovery of the privileged documents. The Court expressly held that the insurance company could assert the insured's attorney-client privilege because the insured had not signed a release waiving the privilege, and the privileged communications between the insured and the insured's defense attorneys "remain privileged even if shared with [the insured's] liability insurer." Id. at 465-66, 583 S.E.2d 80. The Court also distinguished Gaughan and rejected the plaintiff's argument that the insurance company could only assert the quasi attorney-client privilege as to the documents, explaining:
Id. at 465-66, 583 S.E.2d 80 (emphasis added).
Here, as in Medical Assurance of West Virginia, Inc., the underlying defendants have not given Plaintiffs access to their claim file. Consequently, "the attorney-client privilege is fully in effect," and Defendant has no reason to resort to the less restrictive
The work product doctrine protects "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)." Fed.R.Civ.P. 26(b)(3)(A). The party asserting the applicability of the work-product doctrine must show "(1) that the material consists of documents or tangible things, (2) which were prepared in anticipation of litigation or for trial, and (3) by or for another party or its representatives which may include an attorney, consultant, surety, indemnitor, insurer or agent." Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 536, 542 (N.D.W.Va.2000) (quoting Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C.1993)). Unlike files generated while investigating whether to deny a first-party claim, which are generally not considered to have been prepared in anticipation of litigation, insurance claim files generated in relation to investigating and defending against third-party claims are generally considered work-product because they were clearly prepared for the purposes of the underlying litigation, rather than in the insurer's ordinary course of business. See, e.g., Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 332 (N.D.W.Va.2006) (all documents generated
Unlike the attorney-client privilege, work product protection is not absolute, and otherwise protected work-product may be discoverable in some circumstances. However, the showing required to justify the discovery of work-product materials depends on whether the materials are fact work product or opinion work product. Fact work product is discoverable if "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." Fed.R.Civ.P. 26(b)(3). "This burden is a difficult one and is satisfied only in rare situations, such as those involving witness unavailability." Bartlett v. State Farm Mut. Auto. Ins., 206 F.R.D. 623, 628 (S.D.Ind.2002). However, "[w]ork product that includes the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation receives even greater protection." Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 332 (N.D.W.Va.2006). "[U]nlike ordinary work product, opinion work product can not be discovered upon a showing of substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship ... [O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances." In re Doe, 662 F.2d 1073, 1080 (4th Cir.1981) (internal citations omitted).
Plaintiffs contend that they are entitled to review the claim file because of the nature of the allegations in a Michael action. They very generally assert that they have a substantial need for all documents evidencing how Defendant characterized
Here, Plaintiffs very generally assert that they are entitled to all of the documents withheld as work-product because they have a substantial need for the documents and they cannot obtain the information contained therein by other
Finally, Plaintiffs assert that both the attorney-client privilege and the work-product doctrine have been waived in this case because "the documents withheld relate directly to the central issue in the case, namely whether Defendant discharged its duty to evaluate the underlying case in good faith and without consideration of race." Plaintiffs conflate the implied "at-issue" waiver of the attorney-client privilege with the "at-issue" waiver of opinion work-product protection, even though the concepts are distinct.
A party is treated as having waived the attorney-client privilege if: "(1) the assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense." Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975). Thus, a defendant can waive the privilege by asserting reliance on the advice of counsel as an affirmative defense, thereby placing that advice directly at issue. However, "[a]dvice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney's advice might affect the client's state of mind in a relevant manner." Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir.1994).
Plaintiffs assert that by denying it violated the WVHRA in its settlement practices, Defendant placed its attorneys' advice at issue, thereby waiving the attorney-client privilege as to every document in the claim file. However, Defendant has not raised an affirmative defense of advice of counsel. If merely denying the allegations in a complaint waived the attorney-client privilege, the privilege would be moot. Moreover, as noted above, the only privileged documents in the claim file are those involving communications between the underlying defendants and their defense attorneys. It is the actual content of the privileged communication that must be at issue for the privilege to give way, and, clearly, the underlying defense attorneys' advice to the underlying defendants has not been placed at issue in this case.
Plaintiffs also contend that the privilege is waived as to certain categories of documents because they concern issues central to their case. For example, Plaintiffs assert that because they allege that the underlying defendants and Defendant used race in making settlement decisions, all documents mentioning race are discoverable. Additionally, Plaintiffs argue that all attorney-client privileged documents wherein the parties characterized the underlying case and formulated case strategy are discoverable "because of the centrality of how the underlying defendants, Scottsdale, and insurance counsel characterized the case ... or strategized." Similarly, Plaintiffs contend that all communications referencing mediation and settlement are discoverable because "they would show how Scottsdale evaluated this case and permit Plaintiff to develop evidence that race played a role in that evaluation." Plaintiffs arguments are essentially that the information they seek is highly relevant to their claims. However, the Court cannot pierce the attorney-client privilege simply because the information may be relevant to a party's claims. See Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408, 415-16 (D.Del.1992) ("The Court cannot justify finding a waiver of privileged information merely to provide the opposing party information helpful to its cross-examination or because information is relevant.... It is always possible that the client's motive or conduct was influenced by something his attorney told him, but compelling the production cannot be justified solely as a means to check the insured's statements."); Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir.1994) ("Relevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, and that remains the case even if one might conclude the facts
As for work product, Plaintiffs assert that the implied "at-issue" exception to the immunity of opinion work-product applies in this case because the opinions of counsel and Defendant's adjusters are directly at issue. As noted above, in this Circuit, opinion work product enjoys almost absolute immunity from discovery, and an indirect waiver of is protection will only be found in extreme circumstances. In re Martin Marietta Corp., 856 F.2d 619 (4th Cir.1988) ("While certainly actual disclosure of pure mental impressions may be deemed waiver, and while conceivably there may be indirect waiver in extreme circumstances, we think generally such opinion work product is not subject to discovery.").
Plaintiffs argue that because Defendant's settlement decisions necessarily involve the "reaction of adjusters to the actions and statements of counsel," the opinions of counsel are at issue here. The Court finds this reasoning unpersuasive. The opinion work product of the underlying defense attorneys, which consists exclusively of defense counsels' mental impressions and strategies about the underlying litigation, is not at issue in the instant action, even though it may have informed Defendant's evaluation of the underlying claim. Defendant and the underlying defendants, not the underlying defense attorneys, made the ultimate decisions about settlement and litigation that form the basis of the instant action. That Defendant or the underlying defendants may have based their decisions on the opinions and assessments of attorneys clearly does not put those opinions at issue. Nor does Defendant's denial that it violated the WVHRA and assertion that its actions regarding settlement were lawful place the opinions of counsel at issue. It is only when a defendant attempts to avoid liability by justifying its challenged actions because it relied on counsel's advice and opinions that such a waiver occurs. No such advice of counsel defense is present in this case.
The Court acknowledges that some claims, by their very nature, necessarily put the opinions of counsel directly at issue such that the work product immunity must give way to allow for discovery of those opinions. See, e.g., Morrow v. Brown, Todd, & Heyburn, 957 S.W.2d 722, 725 (Ky.1997) (malicious prosecution action against attorney necessarily put in issue the opinions of the attorney defendant who initiated the underlying lawsuit). However, courts in this Circuit generally reject the contention that an action against an insurance company is necessarily such a claim because the conduct and decisions at issue are those of the insurer, rather than those of the attorneys analyzing the claim upon which the agents may have based their ultimate decisions. See Mordesovitch v. Westfield Ins. Co., 244 F.Supp.2d 636, 647 (S.D.W.Va.2003) (noting that while it may be advantageous to the plaintiff to have access to every document in the claims file at issue, there are other ways through which the plaintiff may prove his case including by deposing counsel and the claims adjuster who created the work-product). Plaintiffs try very
Applying the foregoing, the undersigned conducted an in camera review of the documents withheld on the basis of attorney-client privilege and work-product doctrine. The first, and largest, category of documents consists of communications between the underlying defendants and Defendant's claims handlers, or communications between the underlying defendants' attorneys and the claims handlers. To the extent these communications consist of information passing from the underlying defendants, either directly or indirectly, to Defendant's claims handlers, for the purpose of coordinating the legal response to the underlying litigation, they are protected by the attorney-client privilege. Additionally, many of these communications can also be characterized as the work product of the underlying defendants' attorneys because they summarize the attorneys' factual investigations, outline the attorneys' legal strategies, and summarize various depositions and in-court proceedings to the claims handlers. However, to the extent that these documents merely consist of benign communications among the parties that contain neither statements to or from the underlying defendants nor opinions and legal strategies about the underlying litigation, they are not protected by the attorney-client privilege or the work-product doctrine, and their disclosure is proper. See, e.g., Republican Party of N. Carolina v. Martin, 136 F.R.D. 421, 430 (E.D.N.C. 1991) ("[D]ocuments which contain only compilations of facts, and are devoid of any legal analysis (and, apparently, any legal significance) ... are ... unprotected by the work product doctrine.").
The next category of documents consists of litigation and claim summary reports prepared by the underlying defendants' attorneys or by Defendant's claims handlers. These reports, which include detailed factual summaries, litigation strategies, and mental impressions regarding the underlying claim and litigation are clearly work-product and need not be disclosed. The final category of documents includes the log files, which are the detailed notes of Defendant's claim handlers during the pendency of Plaintiff's underlying claim. To the extent the entries in these logs include otherwise privileged information from the underlying defendants, they are privileged. Additionally, many of the entries are protected work-product.
Synthesizing the foregoing, the Court finds as follows:
Plaintiffs' Motion to Compel (Doc. 70) is
Filing of objections does not stay this Order.
Any party may, within fourteen [14] days of this order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Court Judge of Record. Failure to timely file objections to the Order set forth above will result in a waiver of the right to appeal from a judgment of this Court based upon such Order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro se and any counsel of record, as applicable.
