United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
discovery motions are fully briefed and pending before the
Court; they were the subjects of an in-chambers conference of
counsel and a hearing held September 24, 2019. The parties
were successful in resolving some issues by mutual agreement,
as stated on the record at the hearing. The remaining issues
were argued and submitted for decision.
careful consideration, the Court rules as follows:
Defendants' Motion to Quash Deposition Subpoena Duces
Tecum [Doc. No. 16], filed pursuant to Fed.R.Civ.P.
45(d)(3)(iii) and Fed.R.Civ.P. 26(c).
assert claims of attorney-client privilege and work-product
protection to prohibit the disclosure of records by one of
their attorneys, Gary D. Hammond. “The 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, the 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 rules regarding this 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). Defendants' claim to protect their
attorney's work product is governed by Fed.R.Civ.P.
consideration of the issues presented by the Motion and the
parties' arguments, the Court finds that Plaintiff is not
entitled to discover the requested documents. Mr. Hammond was
engaged to advise Defendants regarding a bankruptcy case that
Plaintiff filed while this lawsuit was pending in state
court. Plaintiff seeks to obtain records of communications
between Mr. Hammond and his clients or co-counsel regarding
this litigation or Plaintiff's bankruptcy case; any notes
he made about the cases; and his time records, billing
statements, or records of compensation received for the
representation.Oklahoma law plainly protects Mr.
Hammond's communications with his clients and co-counsel
regarding the representation. See Okla. Stat. tit.
12, § 2502(B)(1), (5). Federal law protects his
case-related notes and materials unless Plaintiff can show a
substantial need for them. See Fed. R. Civ. P.
26(b)(3)(A)(ii); see also Frontier, 136 F.3d at 703
(Rule 26(b)(3) “protects materials prepared for
any litigation . . . as long as they were prepared
by or for a party to the subsequent litigation”)
(internal quotation omitted, emphasis in original).
quest for disclosure focuses on Mr. Hammond's conduct of
contacting the bankruptcy trustee to inquire “about the
status of the bankruptcy case and to see if there was a path
towards a resolution of the lawsuit, ” meaning this
case. See Hammond Dep. 62:12-18, 82:1-5. Plaintiff
contends this conduct should be considered post-litigation
bad faith conduct by Defendant Lyndon Southern Insurance
Company, acting through Mr. Hamond, that was part of a
continued investigation of Plaintiff's insurance claim
during the litigation and part of the insurer's bad faith
conduct with respect to the claim. See Pl.'s
Resp. Br. at 4, 7, 9-12, 15-16. At bottom, Plaintiff's
position is: “Mr. Hammond was not performing legal
work” but was “performing a business act in an
attempt to save Defendants money.” Id. at
Court rejects Plaintiff's position regarding Mr.
Hammond's work, which lacks pertinent factual and legal
support and is inconsistent with bankruptcy practice. Mr.
Gould, as the trustee of Plaintiff's no-asset, Chapter 7
bankruptcy estate, was responsible for evaluating and
deciding how to resolve contingent claims against third
parties, like the ones in this lawsuit. See In re
Hammond, BK-18-12615, Pet. (Bankr. W.D. Okla. June 22,
2018) (listing assets of only exempt personal property and
the claims in this case); see also In re Kane, 628
F.3d 631, 636-37 (3d Cir. 2010) (debtor's disclosure of
“contingent assets such as causes of action pursued
against another party . . . allows the trustee and the
creditors to determine whether to pursue these assets on the
creditors' behalf”) (internal quotations and
citations omitted); Cadle Co. v. Mims (In re
Moore), 608 F.3d 253, 266 (5th Cir. 2010) (“In a
“no-asset” case such as this, litigation claims
represent the last prospect of recovery for the
estate.”). Mr. Gould was the logical person for Mr.
Hammond to call to obtain information that would assist him
in advising Defendants about how to proceed with the defense
of this case. Plaintiff points to no facts or evidence
suggesting that, when Mr. Hammond called Mr. Gould in
November 2018, Mr. Hammond was engaged in investigating or
adjusting an insurance claim rather than rendering legal
services to Defendants with respect to this
lawsuit. In short, the Court finds that Plaintiff
has presented nothing to suggest that Mr. Hammond was
involved in a post-litigation, ongoing investigation of
Plaintiff's insurance claim, as argued in her brief and
at the hearing.
these reasons, the Court finds no basis to deprive Defendants
of the protections of the attorney-client privilege and the
work-product doctrine for Mr. Hammond's work. Therefore,
Defendants' Motion to Quash is GRANTED.
Plaintiff's Motion to Compel Against Defendant Lyndon
Southern Insurance Company [Doc. No. 18], filed
pursuant to Fed.R.Civ.P. 37(a).
review of the Motion and consideration of the parties'
arguments, the Court finds as follows regarding documents
requested by Plaintiff from Defendant Lyndon Southern
Insurance Company (“Lyndon Southern”):
• Request for Production No. 11 -
Correspondence, contracts, and compensation of attorney Gary
Hammond. Mr. Hammond's engagement letter and documents
showing fees paid to him are not confidential communications.
See United States v. Hodgson, 492 F.2d
1175, 1177 (10th Cir. 1974); see also United States v.
Anderson (In re Grand Jury Subpoenas), 906 F.2d
1485, 1492 (10th Cir. 1990). These documents may be
relevant to a claim or defense and, therefore, are
discoverable. Other correspondence exchanged between Mr.
Hammond and Lyndon Southern may contain confidential
communications, and billing documents may reflect attorney
work product. To withhold relevant documents from production,
however, Lyndon Southern must produce a privilege log in
compliance with Fed.R.Civ.P. 26(a)(5)(A).
• Request for Production No. 2 - Pre-contract
promotional or sales materials provided to Lyndon Southern by
Defendant Jupiter Managing General Agency, Inc.
(“Jupiter”) that preceded their business
relationship. Defendants have produced copies of the relevant
contracts, and have agreed to produce 30-day reports of
accounting information regarding their relationship from 2015
to 2017. The Court finds this production is sufficient and
proportional to Plaintiff's need for discovery about the
issues in the case. Lyndon Southern need not produce any
additional, “courtship” materials regarding its
relationship with Jupiter.
• Request for Production No. 9 - Documents
showing reinstatement fees received in Oklahoma since 2015.
This request seeks information to support Plaintiff's
claims against Jupiter related to cancellation notices and
billing practices. Lyndon Southern represents that it did not
charge, collect, or receive such fees. Plaintiff does not
dispute this representation. The Court finds that, to the
extent Lyndon Southern has any responsive documents, their
production is not proportional to the needs of the case,
considering the ...