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Thane v. Geico Casualty Co.

United States District Court, D. Colorado

July 25, 2017

JODIE THANE, Plaintiff,



         During the course of discovery in this case, Defendant Geico Casualty Company (“GEICO”) served a Notice of Intent to Take Deposition by Written Questions together with a subpoena duces tecum on the law firm currently representing Plaintiff in this action, seeking information from Plaintiff's former counsel, Robert Fischel (“Fischel”). GEICO also served a subpoena duces tecum on the Plaintiff's former counsel, Donald Moore (“Moore”). Both Moore and Fischel represented Plaintiff during the litigation underlying the present dispute. Plaintiff, through the law firm Franklin D. Azar and Associates, P.C. (“Azar”), now seeks protection from responding to GEICO's subpoena and deposition questions and, in addition, Moore moves to quash the subpoena, based on the attorney-client privilege and work-product doctrine. The Court finds GEICO has demonstrated waivers of the attorney-client privilege and work-product doctrine in certain respects and, thus, the motions are granted in part and denied in part.

         I. Background

         Plaintiff Jodie Thane (“Plaintiff”) alleges that, as a result of an automobile accident involving Kenneth Farrell (“Farrell”) and Aaron Thane on May 25, 2012, Farrell was seriously injured and Aaron Thane was killed. Plaintiff and Aaron Thane were insured through a GEICO personal automobile insurance policy with liability limits of $50, 000 per person/$100, 000 per occurrence. Farrell brought claims against the Estate of Aaron Thane and Jodie Thane. Plaintiff alleges that GEICO failed to protect her interest and to attempt settlement of Farrell's claims within the policy limits. The matter was tried and, on August 29, 2014, a jury returned a verdict in Farrell's favor against Jodie Thane in the amount of $1, 500, 000. On November 7, 2014, the trial court reduced the award and entered judgment in the amount of $1, 004, 226.49. The Colorado Court of Appeals affirmed the judgment on March 10, 2016.

         Plaintiff then filed this action in the District Court for the County of Denver, Colorado as the named insured under the GEICO policy, alleging claims for bad faith breach of the insurance contract and a violation of Colo. Rev. Stat. §10-3-1115. ECF No. 4. GEICO filed an Answer in response to the Complaint on November 30, 2016, then removed the action to this Court on December 1, 2016. ECF Nos. 1, 6. This Court issued a Scheduling Order on January 11, 2017, and discovery proceeded.[1]

         In the present motion for protective order, Plaintiff contends that the documents and information GEICO seeks-described as the “attorney file” pertaining to Azar's representation of the Plaintiff in the underlying case-is protected from disclosure by the attorney-client privilege and work-product doctrine. In the motion to quash, Moore argues the same regarding the same type of documents and information sought from him.

         In response to the motion for protective order, GEICO contends that Plaintiff waived any objection to the requested discovery by failing to timely object and impliedly waived both the attorney-client privilege and work-product doctrine by placing at issue communications between herself and her attorneys, Moore and Fischel, in the underlying case. In addition, GEICO counters that the motion itself is procedurally improper, as none of the discovery was served directly on the Plaintiff but, rather, on her law firm and former lawyers, all non-parties to this action. GEICO also asserts that Plaintiff failed to supply a privilege log with her claim of privilege, as required by the applicable rules. In response to the motion to quash, GEICO raises the same arguments concerning Plaintiff's waivers of the privileges and failure to supply a privilege log.

         Plaintiff replies by attaching all relevant discovery requests and arguing that they are virtually identical save the case caption. She also argues that her request for protection is broader than that which she could request in a single motion to quash (i.e., her attorneys were served with both a subpoena and notice to take a deposition) and, thus, she filed one motion for protective order “in an effort to simplify the exact scope of allowable discovery going forward.” Reply, ECF No. 63 at 3. Further, Plaintiff attached a privilege log and claims there is no prejudice to GEICO. Finally, Plaintiff asserts that GEICO “wholly controlled” her defense of the underlying case and, thus, whether she desired to settle the claims is irrelevant. Before filing his reply, Moore filed a supplement attaching a privilege log for all documents withheld; in his reply, Moore argues that Plaintiff's counsel informed him that she did not waive the attorney-client privilege, and the work-product doctrine attaches to the discovery requested by GEICO.

         Because Plaintiff and Moore filed their privilege logs after GEICO filed its response briefs, the Court granted GEICO's request to file a surreply in support of its objection to the motions. GEICO argues that Plaintiff's privilege log is untimely and lacks sufficient detail “as required by Colo. R. Civ. P. 26(b)(5)(A).”

         II. Legal Standards

         Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). The party seeking a protective order bears the burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the court. See Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). As part of the exercise of its discretion, the court may also specify the terms for disclosure. Fed.R.Civ.P. 26(c)(1)(B).

         The good cause standard is “highly flexible, having been designed to accommodate all relevant interests as they arise.” See Rohrbough, 549 F.3d at 1321 (citation omitted). However, conclusory assertions are insufficient to show good cause. Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003). “Instead, the party seeking a protective order must show that disclosure will result in a clearly defined and serious injury to the party seeking protection.” Id. (citing Exum v. United States Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002) (internal citations omitted)). As a general rule, the “good cause” calculation requires that the court balance “the [moving] party's need for information against the injury which might result from unrestricted disclosure.” Exum, 209 F.R.D at 206 (citations omitted).

         Fed. R. Civ. P. 45(d)(3)(A) requires the Court to quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires excessive travel by a non-party; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. Plaintiff and Moore rely on subsection (iii) of the applicable rule.

         In diversity jurisdiction cases such as this one, state law controls the issues of privilege raised by the parties. See Fed. R. Evid. 501; see also Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998). In Colorado, the attorney-client privilege is “established by the act of a client seeking professional advice from a lawyer and extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations.” People v. Tucker, 232 P.3d 194, 198 (Colo.App. 2009) (citing Losavio v. Dist. Court in and for Tenth Judicial Dist., 533 P.2d 32, 35 (Colo. 1975)); see also People v. Trujillo, 144 P.3d 539, 542 (Colo. 2006) (“the attorney-client privilege applies to confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction with respect to the client's rights or obligations”). The privilege applies only to communications under circumstances giving rise to a reasonable expectation that the communications will be treated as confidential. Tucker, 232 P.3d at 198 (citing Wesp v. Everson, 33 P.3d 191, 197 (Colo. 2001)). Mere statements of fact are not protected by the attorney-client privilege. Trujillo, 144 P.3d at 545 (citing Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000) (noting that “the privilege protects only the communications to the attorney; it does not protect any underlying and otherwise unprivileged facts that are incorporated into a client's communication to his attorney”)). “The burden of establishing the applicability of the attorney-client privilege rests with the claimant of the privilege.” Black v. Sw. Water Conservation Dist., 74 P.3d 462, 467 (Colo.App. 2003) (citing Clark v. District Court, 668 P.2d 3, 8 (Colo. 1983)); see also In re Foster, 188 F.3d 1259, 1264 (10th Cir. 1999).

         “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).” Frontier Refining Inc., 136 F.3d at 702 n.10 (internal quotation omitted). To be subject to the work-product doctrine the materials must have been “prepared in anticipation of litigation. It does not protect materials prepared in the ‘ordinary course of business.'” Weitzman v. Blazing Pedals, Inc., 151 F.R.D. 125, 126 (D. Colo. 1993) (citation omitted). Thus, to receive work-product protection, the party resisting discovery must demonstrate that the information at issue “was prepared by the attorney in anticipation of litigation or for trial.” In re Grand Jury Proceedings, 616 F.3d 1172, 1184-85 (10th Cir. 2010); see also Pepsico, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002) (stating that “[i]n order to protect work product, the party seeking protection must show the materials were prepared in anticipation of litigation, i.e., because of the prospect of litigation”) (emphasis added).

         The court in Martin v. Monfort, Inc., 150 F.R.D. 172 (D. Colo. 1993), set forth a process to be considered in determining a claim for work-product protection:

Rule 26(b)(3) ... contemplates a sequential step approach to resolving work product issues. First, the party seeking discovery must show that the subject documents or tangible things are relevant to the subject matter involved in the pending litigation and are not privileged. Once such a showing has been made, the burden shifts to the party seeking protection to show that the requested materials were prepared in anticipation of litigation or for trial by or for the party or the party's attorney, consultant, surety, indemnitor, insurer or agent. Such a showing may be made by affidavit, deposition testimony, answers to interrogatories, and the like. If the Court concludes that the items were prepared in anticipation of litigation, the burden shifts back to the requesting party to show: (a) a substantial need for the materials in the preparation of the party's case; and (b) the inability without undue hardship of obtaining the substantial equivalent of the materials by other means. Finally, even if substantial need and unavailability are demonstrated, the Court must distinguish between factual work product, and mental impressions, opinions, and conclusions, for the latter are rarely, if ever, subject to discovery.

Id. at 172-73 (internal citations omitted). ...

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