United States District Court, W.D. Oklahoma
CHARLES A. SHADID, L.L.C., Plaintiff,
ASPEN SPECIALTY INSURANCE COMPANY, Defendant.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
pending before the Court for resolution is an outstanding
issue raised by Plaintiff's Motion to Compel [Doc. No.
68] regarding Defendant's failure to produce unredacted
documents from its insurance claim files, and two pages from
its claims manual, based on claims of privilege for
attorney-client communications and attorney work product.
After a hearing and a ruling by the Court [Doc. No. 74],
Defendant submitted the documents at issue for in
camera review. The documents are generally listed on
Defendant's privilege log. See Pl.'s Mot.,
Ex. 1 [Doc. No. 68-1].
party seeking to assert a privilege has the burden of
establishing its applicability.” Motley v. Marathon
Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995); accord
In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th
Cir. 2010). In this diversity case, Defendant's claim of
attorney-client privilege is governed by Oklahoma law.
See Seneca Ins. Co. v. W. Claims, Inc., 774
F.3d 1272, 1275 (10th Cir. 2014); Fed.R.Evid. 501. Oklahoma
has codified its legal rules regarding the attorney-client
privilege, which protects “confidential communications
made for the purpose of facilitating the rendition of
professional legal services to the client.” Okla. Stat.
tit. 12, § 2502(B). “‘[T]he mere fact that
an attorney was involved in a communication does not
automatically render the communication subject to the
attorney-client privilege; rather, the ‘communication
between a lawyer and client must relate to legal advice or
strategy sought by the client.'” In re Grand
Jury Proceedings, 616 F.3d at 1182 (quoting
Motley, 71 F.3d at 1550-51; United States v.
Johnston, 146 F.3d 785, 794 (10th Cir. 1998)).
federal court litigation, attorney work product is governed
by Rule 26(b)(3) of the Federal Rules of Civil Procedure.
See Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d
695, 702 n.11 (10th Cir. 1998) (“Unlike the attorney
client privilege, the work product privilege is governed,
even in diversity cases, by a uniform federal standard
embodied in Fed.R.Civ.P. 26(b)(3).”) (internal
quotation omitted). This rule generally protects from
disclosure documents “prepared in anticipation of
litigation or for trial” by a party's attorney or
other representative. See Fed. R. Civ. P.
26(b)(3)(A). “Rule 26(b)(3) 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 Ref., 136 F.3d at 704
(footnote omitted). The rule provides additional protection
for “the mental impressions, conclusions, opinions, or
legal theories of a party's attorney or other
representative concerning the litigation.” Fed.R.Civ.P.
these legal principles in mind, the Court has reviewed the
documents produced by Defendant in camera and finds
that Defendant has failed to establish its claims of
privilege with respect to most of the documents in question.
The redactions from the billing invoices of its field
adjuster, Associated Claims Management, Inc.
(“ACM”), the structured notes in its claims file,
and communications between an attorney engaged to assist with
processing Plaintiff's insurance claim (James Nader) and
claim adjusters employed by Defendant or ACM regarding
claim-specific tasks such as correspondence with Plaintiff,
concern routine insurance business matters and not the
rendition of professional legal services. Most of these
communications occurred early in Defendant's claim
investigation process, before it had received a properly
completed proof of loss form or taken Plaintiff's
examination under oath and while it was still collecting
documents and information. During that time period, Mr.
Nader's role was limited to insurance claim processing
tasks, as stated in an engagement letter sent October 25,
2013 (0137-0138, 1314). By Defendant's own account, it
could not reach a determination regarding Plaintiff's
claim without an engineering evaluation; the engineering
reports were not delivered to and reviewed by ACM until
Court also finds, however, that one page of withheld
correspondence (2028) does contain a request for Mr.
Nader's advice on a particular legal issue and his
response, and a letter from Mr. Nader to Jonna Holm dated
March 31, 2014 (2196-98) contains legal analysis and advice.
These pages constitute confidential attorney-client
communications and are protected.
Court further finds that the two pages of Defendant's
claims manual at issue (3073-74) reflect Defendant's
policy and guidelines regarding litigation generally, and bad
faith litigation specifically, and constitute attorney work
product. This portion of the claims manual was prepared in
anticipation of litigation; “work product protection is
[not] confined to materials specifically prepared for the
litigation in which it is sought.” Frontier
Ref., 136 F.3d at 703; see F.T.C. v. Grolier
Inc., 462 U.S. 19, 25 (1983) (“[T]he literal
language of the Rule protects materials prepared for any
litigation or trial as long as they were prepared by or for a
party to the subsequent litigation.”). Plaintiff has
not demonstrated a substantial need for this material, and
therefore, it need not be produced.
THEREFORE ORDERED that Defendant shall produce to Plaintiff
within 14 days from the date of this Order, unredacted copies
of the documents produced in camera, except the
documents identified supra as containing privileged
communications or work product (2028, 2196-98 and
 Some listed documents have been
produced, or redaction issues were resolved by agreement of
 Defendant characterizes Mr.
Nader's work as legal services because its claims
personnel decided to involve a lawyer in investigating
Plaintiff's claim under the circumstances. Defendant
points out that Plaintiff's representative, Charles
Shadid is a lawyer; that Plaintiff had been involved in claim
litigation in the past; and that Plaintiff's letters from
Mr. Shadid were similar to legal correspondence, quoting
policy language and containing legal disclaimers.
See Def.'s Resp. Br. [Doc. No. 71] at 17-18.
Defendant specifically relies on Mr. Shadid's letter
dated October 10, 2013, as leading to a reasonable conclusion
that the claim was headed toward litigation and it should
engage legal services. See Def.'s Ex. 8 [Doc.
No. 71-8]. However, Mr. Shadid's letter was a response to
an earlier letter from ACM, and merely ...