United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE
pending before the Court for resolution is an outstanding
issue raised by Plaintiff's Motion to Compel Discovery
and Brief in Support [Doc. No. 43], regarding Defendant's
failure to produce unredacted documents from its insurance
claim file, based on claims of privilege for attorney-client
communications and attorney work product. After a ruling by
the Court [Doc. No. 98], Defendant submitted the documents at
issue for in camera review. The documents are
generally listed on Defendant's privilege log.
See Pl.'s Mot. to Compel, Ex. 1 [Doc. No. 43-1].
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). In this
diversity case, Defendant's claim of attorney-client
privilege is governed by Oklahoma law. Seneca Ins. Co. v.
W. Claims, Inc., 774 F.3d 1272, 1275 (10th Cir. 2014);
Fed.R.Evid. 501. Oklahoma has codified its legal rule
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 1172, 1182 (10th Cir. 2010) (quoting
Motley, 71 F.3d at 1550-51; United States v.
Johnston, 146 F.3d 787, 794 (10th Cir. 1998)).
federal court litigation, attorney work product is governed
by Rule 26(b)(3) of the Federal Rules of Civil Procedure.
Frontier Ref., Inc. v. Gorman-Rupp Co., Inc., 136
F.3d 695, 702 n.10 (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 redacted documents relate to Defendant's loss
reserves, which the Court found were discoverable in its
November 15, 2019 Order [Doc. No. 98 at 5]. The redactions in
the Claim Summary Report are a summary of pre-litigation
communications among Defendant's claims specialist,
claims supervisor, and assistant vice president noting
changes to the reserves amount based on the investigation of
Plaintiff's Claim. See PIIC CF 2-4, 6-12.
Contrary to Defendant's assertion, the Claim Summary
Report does not involve attorney-client communications, and
aside from the first page, was prepared prior to litigation.
The communications concern routine insurance business matters
and are not the rendition of professional legal services.
Most of these communications occurred early in
Defendant's claim investigation process while it was
still collecting documents and information.
Defendant asserts that the Claim Summary Report is
proprietary in nature, Defendant does not explain how it is
proprietary and the Court is unable to draw that inference.
Thus, the Claim Summary Report is discoverable. See
PIIC CF 1-12. Likewise, PIIC CF 29-65, 272-75, 313-47,
1079-85, 1119-24, and 1201 involve email communications
(pre-litigation) among Defendant's claims specialist,
claims supervisor, general adjuster, and assistant vice
president regarding the adequacy of the reserves amount and
changes thereto. For the same reasons described
supra, they are discoverable.
Claim Summary [PIIC CF 1358] references total reserves for
prior claims by Plaintiff. The Court does not see the
relevance of this document to Plaintiff's claims or to
Defendant's defenses. Based on the Court's December
3, 2019 Order [Doc. No. 99 at 7- 8], in which the Court found
that Defendant could not introduce evidence of
Plaintiff's prior claims, the Court concludes that the
Claim Summary [PIIC CF 1358] is not discoverable.
substantial part of the redacted documents relates to
premiums; however, Defendant does not assert a specific
objection in the privilege log. Further, in a separate motion
pending before the Court, Plaintiff has indicated that it
does not intend to comment or argue about the amount of
premiums paid [Doc. No. 87 at 31] unless Defendant makes the
matter relevant to an issue in the case. The premiums do not
appear facially relevant, and Plaintiff bears the burden of
establishing relevance. Thus, the Court finds they are not
discoverable. See PIIC CF 179-83, 300-01, 506,
512-13, 516, 518-19, 527, 531-32, 533, 536, 540, 542, 836,
840-43, 846, 848-49, 857, 861-63, 866, 870, 872, 1359, 1362,
asserts that the property reports are work product,
privileged, and proprietary in nature. PIIC CF 1585-91,
1800-06, 2065-66, 2071-73. The Court disagrees. The reports
are prepared by Defendant's general adjusters for the
benefit and approval of the claims examiner. They do not
involve attorney-client communications and were prepared
prior to litigation. The reports include an estimate of loss,
an abstract of policy coverage, a summary of the
adjusters' inspection and investigation, and payment
recommendations. Further, Defendant does not explain how the
reports are proprietary in nature, and the Court cannot draw
that conclusion based on its review. Thus, the property
reports are discoverable.