Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Curtis v. Progressive Northern Insurance Company

United States District Court, W.D. Oklahoma

May 1, 2019

RACHEL CURTIS, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiffs motion to compel Defendant to produce certain documents listed on its privilege log. Doc. 87. Defendant filed a response, Doc. 98, and upon order of this Court submitted the documents in question for in camera review. See Doc. 105. This and all pending discovery matters were referred to the undersigned Magistrate Judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A). Docs. 104, 111. The undersigned has conducted an in camera review of the documents in question and grants Plaintiffs motion in part as described below.

         I. Background.

         Plaintiffs claim rises out of Defendant's use of software developed by non-party Mitchell, Inc. Plaintiff claims this use of the Mitchell software results in an undervaluation of the total loss amount due to Progressive policy holders, including Plaintiff. See Doc. 33.

         The parties have been engaged in discovery as to these claims since January 30, 2018. On August 28, 2018, Defendant submitted its first privilege log. See Doc. 88. The parties have subsequently corresponded and held conferences without court intervention regarding Defendant's claims of privilege pursuant to Fed.R.Civ.P. 37. The parties reached some resolution and Defendant has produced additional documents through that process but maintains its claims of privilege over other disputed documents. Defendant submitted a revised privilege log on January 29, 2019. See Doc. 93. The parties held a Rule 37 conference on February 8, 2019 regarding the revised privilege log but did not resolve any additional issues. Plaintiff requests production of four separate email chains dated: (1) May 21-23, 2013, Doc. 98, Ex. 7, at 2, Nos. 8-11; (2) June 12-13, 2013, id. at 2-3, Nos. 12, 14-18; (3) July 30-31, 2015, id. at 5, Nos. 49-50; and (4) January 27, 2017 and February 7, 2017, id. at 6-7, No. 69. The relevance of these documents to the claims at issue is undisputed.

         II. Analysis.

         Rule 26(b)(1) provides that parties may obtain discovery "regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Thus, to be discoverable under Rule 26, material must be both relevant to a party's claims or defenses and non-privileged.

         Federal Rule of Evidence 501 provides that state law controls the application of the attorney-client privilege in this case. Frontier Ref., Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (10th Cir. 1998). Under Oklahoma law, the privilege protects confidential communications between an attorney and a client "who consults [the] attorney with a view towards obtaining legal services or is rendered professional legal services by an attorney." Okla. Stat. tit. 12, § 2502(A)(2), (B). To be protected, the communication must be made for the purpose of obtaining legal advice. Id. § 2502(B). The party asserting the privilege has the burden of establishing the privileged status of the communication. Chandler v. Denton, 741 P.2d 855, 865 (Okla. 1987).

         Section § 2502 also provides, in relevant part:

         A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal service to the client:

1. Between the client or a representative of the client and the client's attorney or a representative of the attorney;
2. Between the attorney and a representative of the attorney;
3. By the client or a representative of the client or the client's attorney or a representative of the attorney to an attorney or a representative of an attorney representing another party in a pending action and concerning a matter of common interest therein;
4. Between representatives of the client or between the client and a representative of the client; or
5. Among attorneys and their representatives representing the same client.

Id. § 25O2(B)(1)-(5).

         A "representative of the client" is:

a. One having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or
b. Any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.