Opinion
Case No.: 3:22cv21728/MCR/ZCB
2023-02-21
Michelle SMITH, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant.
James Michael Messer, Messer Law Firm PA, Pensacola, FL, for Plaintiff. Jordan Lynn Parker, Boyd & Jenerette PA, Jacksonville, FL, for Defendant.
James Michael Messer, Messer Law Firm PA, Pensacola, FL, for Plaintiff. Jordan Lynn Parker, Boyd & Jenerette PA, Jacksonville, FL, for Defendant. ORDER Zachary C. Bolitho, United States Magistrate Judge
This matter is before the Court on Plaintiff's "Motion to Compel Because of Defendant's Failure to Respond to Request for Production of Documents." (Doc. 10). Defendant has responded in opposition. (Doc. 13). The Court held a hearing on February 16, 2023. The matter is ripe for resolution. For the reasons below, the Court grants Plaintiff's motion.
I. Background
This is a breach of contract action that was initially filed in state court and subsequently removed to this Court. Plaintiff alleges Defendant breached an insurance contract by failing to adequately compensate her for hurricane damage. The case is currently in discovery, which has given rise to the current dispute.
On November 28, 2022, Plaintiff served Requests for Production of Documents (RFPs) under Rule 34 of the Federal Rules of Civil Procedure. (Doc. 10-1). Defendant failed to respond to the RFPs by the thirty-day deadline. Plaintiff then emailed Defendant regarding the status of the overdue responses. (Doc. 13-3). Defendant apologized for missing the deadline and requested a seven-day extension to January 6, 2023. (Id.). Plaintiff did not agree to the extension because the documents were needed and were not produced with Defendant's initial Rule 26(a) disclosure. Plaintiff did, however, agree to refrain from filing a motion to compel if Defendant's response was filed expeditiously and in good faith. (Doc. 10 at 2). That same day, Defendant responded that it had produced documents in the initial Rule 26(a) disclosure, and Defendant resent the link to those corresponding documents. (Doc. 13-4). At that point, Defendant believed the discovery issue had been resolved and did not intend to provide further responses. (Doc. 13 at 3).
When Plaintiff failed to receive a formal response to the RFPs by January 6, 2023, her counsel notified Defendant that a motion to compel would be filed if a response was not received by January 9, 2023. (Doc. 10 at 2). Defendant then served its initial response to the RFPs on January 9, 2023. (Docs. 10-2; 13-6). Defendant also reached out to Plaintiff to discuss the misunderstanding regarding discovery. (Docs. 13 at 3; 13-5 at 1). The parties spoke on the phone January 9, 2023, and set another telephone conference for January 13, 2023, to substantively discuss Defendant's response. (Docs. 13 at 3; 13-5 at 1).
Defendant's initial response objected to numerous requests related to documents included in its claim file. Defendant's objections to these documents rested on three grounds. First, Defendant objected to the production of claim file documents because the requests were "vague, overbroad, [and] ambiguous." (Doc. 10-2). Second, Defendant objected to the requests under the attorney-client privilege and work product doctrine. (Id.). Third, Defendant objected because the requests sought matters "beyond the scope of discovery." (Id.).
Defendant made these general, boilerplate objections, even though such objections are "strongly disfavored" in the Northern District of Florida and have been repeatedly deemed meritless by this Court's judges. See N.D. Fla. Loc. R. 26.1(C) ("Boilerplate objections are strongly disfavored."); see also Durrah v. Bowling Green Inn of Pensacola, LLC, No. 3:20-cv-5234, 2020 WL 8910886, at *2 (N.D. Fla. June 10, 2020) ("Boilerplate objections are not proper."); GHMC Holding Co. v. Sickle, No. 3:14-cv-614, 2016 WL 7757522, at *7 (N.D. Fla. Feb. 23, 2016) (referring to objections as "boilerplate and inappropriate").
Plaintiff was dissatisfied with Defendant's responses. (Doc. 10-3). During their January 13, 2023, telephone conference, the parties were unable to reach an agreement about what documents should be produced. (Doc. 10 at 19; Doc. 13 at 3). Plaintiff then filed the current motion to compel on January 16, 2023. (Doc. 10).
Specifically, Plaintiff challenges Defendant's responses to RFPs 2, 3, 4, 5, 6, 8, 9, 10, 12, 15, and 19.
On January 17, 2023, the Court ordered the parties to confer again regarding the issues raised in the motion to compel. (Doc. 11). On January 24, 2023, the parties conferred in compliance with the Court's order. (Doc. 13 at 4). Defendant offered to revise its responses to the RFPs and provide some additional documentation. Defendant also provided a privilege log on January 31, 2023. (Doc. 13-7). Additionally, Defendant removed its objections to the RFPs on the grounds that they are vague, overbroad, and ambiguous and protected by the attorney-client privilege. Defendant maintains its argument that the claim file documents are protected by the work product doctrine and beyond the scope of discovery.
II. Discussion
A. Defendant is not entitled to withhold the documents sought by Plaintiff based on the work product doctrine.
To resolve the motion to compel, the Court must first determine whether federal or state law governs the scope of the work product doctrine in diversity cases. Defendant argues that Florida law applies, and it further argues that under Florida law an insurance company's claim file is protected by the work product doctrine. (Doc. 13 at 5-9). Plaintiff counters that federal law applies, and she further argues that under federal law an insurance company's claim file is subject to the typical work product analysis under Rule 26 of the Federal Rules of Civil Procedure. (Doc. 10 at 7-13). Having considered the arguments and the applicable law, the Court believes Plaintiff is correct. Let's look at why.
Federal courts exercising diversity jurisdiction apply state substantive law and federal procedural law. Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1259 (11th Cir. 2015). Under the Federal Rules of Evidence, federal courts sitting in diversity are required to apply state law regarding the attorney-client privilege as well as other evidentiary privileges. Fed. R. Evid. 501. The work product doctrine is not an evidentiary "privilege"—rather, it is a "procedural rule of federal law." In re Pros. Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009). Thus, "federal, not state, work-product rules apply in diversity suits in federal court." Ford v. Gov't Emps. Ins. Co., No. 1:14cv180, 2015 WL 11109374, at *1-2 (N.D. Fla. June 11, 2015). That means the applicable standard is found in Federal Rule of Civil Procedure 26 and not state law. In re Pros. Direct Ins. Co., 578 F.3d at 438.
And, as another judge on this Court has recognized, neither Rule 26 nor any other provision of federal law provide an insurance company with blanket work product protection for the materials in a claim file. See Bartram, LLC v. Landmark Am. Ins. Co., No. 1:10-cv-28, 2011 WL 528206, at *2 (N.D. Fla. Feb. 4, 2011) ("Under federal law an insurer's claims files are not automatically entitled to protection under the work product doctrine in a first party insurance dispute."). Rather, an insurance company claiming work product doctrine protection is required to satisfy the usual Rule 26 standard with respect to each document it seeks to withhold from discovery. See Ford, 2015 WL 11109374, at *3 (stating that to obtain work product protection the insurance company was "required to show that the sought-after documents were prepared in anticipation of litigation") (emphasis in original). This Court's view comports with the consensus view of federal courts throughout Florida. It is also the consensus view of other federal courts across the Eleventh Circuit, as well as federal courts throughout the country.
See, e.g., The Atrium on the Ocean II Condo. Ass'n, Inc. v. OBE Ins. Corp., No. 06-14326-CV, 2007 WL 2972937, at *2 (S.D. Fla. Oct. 9, 2007) (finding that "under federal law, there is no blanket protection of an insurance company's claim file"); St. Joe Co. v. Liberty Mut. Ins. Co., No. 3:05cv1266J-25, 2006 WL 3391208 (M.D. Fla. Nov. 22, 2006) ("While several Florida [state] courts have held that claims files are off limits until coverage has been proven, federal courts regularly permit discovery of an insurer's claims file."); Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 698-701 (S.D. Fla. 2007) (rejecting insurer's argument that its claim file was immune from discovery under Florida state law regarding the work product doctrine because "federal law, not state law, provides the rule of decision in this case"). Plaintiff has identified one case from the Middle District of Florida that has gone in a different direction, Gavin's Ace Hardware, Inc. v. Federated Mut. Ins. Co., No. 2:11-cv-162, 2011 WL 5104476 (M.D. Fla. Oct. 27, 2011). That decision is unpersuasive and contrary to the overwhelming weight of precedent.
See, e.g., Lewis v. Ameriprise Ins. Co., No. CV16-00111, 2017 WL 890101, at *2-3 (S.D. Ala. Mar. 6, 2017) (stating that federal courts apply federal law to work product doctrine disputes and refusing to preclude the entire insurance claim file from discovery); Jones v. Tauber & Balser, P.C., 503 B.R. 162, 194 (N.D. Ga. 2013) (applying federal work product law and explaining that "[i]nsurance claim files generally do not constitute work product in the early stages of investigation, when the insurance company is primarily concerned with 'deciding whether to resist the claim, to reimburse the insured and seek subrogation . . . or to reimburse the insured and forget about the claim thereafter' ") (cleaned up).
See, e.g., Dwight & Gary LLC v. Bankers Ins. Co., No. 2:21cv1129, 2021 WL 6973865 (W.D. La. Nov. 23, 2021) (applying federal work product standard and rejecting insurance company's "blanket claim of work product" protection for entire claim file); United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 966-67 (3d Cir. 1988) (recognizing that "federal courts have consistently ruled that the work product doctrine is not inapplicable merely because the material was prepared by or for a party's insurer or agents of the insurer"); Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 658-59 (S.D. Ind. 1991) (applying the federal work product doctrine and determining that insurer's claim file was subject to discovery unless it could show that specific documents were produced in anticipation of litigation); S.D. Warren Co. v. Eastern Elec. Co., 201 F.R.D. 280, 282-83 (D. Me. 2001) (stating that "federal courts apply federal law when addressing the work product doctrine" and stating that "the overwhelming majority of federal courts . . . have chosen not to accord insurance companies special treatment during discovery and have maintained the fact specific" approach to determining whether documents in an insurance claim file were produced in anticipation of litigation).
The applicable standard, therefore, is found in Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure. It states in pertinent part:
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent. But . . . those
materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.Fed. R. Civ. P. 26(b)(3)(A). For purposes of Rule 26(b)(3)(A), the "testing question" is "whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." In re: 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19md2885, 2021 WL 952315, at *6 (N.D. Fla. Mar. 12, 2021) (internal quotations omitted). The party asserting the protection of the work product doctrine bears the burden of showing it applies to a particular item(s) sought in discovery. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013).
As noted above, federal courts have generally refused to create a blanket rule that protects documents in an insurer's claim file from discovery on work product grounds. Instead, federal courts have said that the insurer must demonstrate that the item(s) from the claim file that it seeks to withhold were made in anticipation of litigation. See, e.g., Ford, 2015 WL 11109374, at *3 (requiring the insurer to "show that the sought-after documents were prepared in anticipation of litigation"). Generally, "under federal law the date which triggers the application of the work product doctrine in the context of a first party insurance coverage dispute is the date of the formal denial of the claim by the insurer." Bartram, LLC, 2011 WL 528206, at *2; see also Cutrale Citrus Juices USA, Inc. v. Zurich Am. Ins. Grp., No. 5:03-cv-420, 2004 WL 5215191, at *2 (M.D. Fla. Sept. 10, 2004) (stating that "the date coverage is denied by the insurer has been recognized by a number of courts as the proper date after which it is fairly certain there is an anticipation of litigation and thus documents generated after that date would be protected as work product"). The courts have recognized that there "is a rebuttable presumption that documents or things prepared before the final decision on an insured's claim are not work product." Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp., 268 F.R.D. 695, 698 (S.D. Fla. 2010) (internal quotations omitted). Thus, if an insurance company seeks to withhold as work product documents prepared before the formal denial, then it must "demonstrate that the particular documents were prepared in anticipation of litigation in order for the work product protection to apply." Bartram, LLC, 2011 WL 528206, at *2. To make such a showing, the insurer "must demonstrate the connection to possible litigation concretely enough to assure a court that it is not simply trying to immunize from discovery its routine claims processing material." Royal Bahamian Ass'n, Inc., 268 F.R.D. at 698.
Applying the above to this case, the documents Plaintiff seeks are not protected by the work product doctrine simply because they are found in Defendant's claim file. Thus, for each document Defendant seeks to withhold it must make a showing that the document was created in anticipation of litigation. The formal denial date of Plaintiff's claim in this case appears to be September 27, 2022. The documents that pre-date September 27, 2022, are presumed to be created in the ordinary course of business and not work product unless Defendant shows otherwise. Those made after September 27, 2022, are presumed to be prepared in anticipation of litigation and are protected by the work product doctrine unless Plaintiff makes a showing of substantial need.
This is the date of a letter from Defendant informing Plaintiff that it was denying her claim for the policy limits of $428,000 and standing by its prior determination that Plaintiff's damages were $48,979.65. (Doc. 10 at 4).
From the information provided to the Court, it appears that many of the documents sought by Defendant were created prior to September 27, 2022. Defendant has failed to meet its burden of showing that any documents prior to that date were made in anticipation of litigation. All Defendant has provided is a privilege log, which does not provide the Court "with evidentiary proof of objective facts" that the documents it seeks to withhold were prepared in anticipation of litigation. Milinazzo, 247 F.R.D. at 701-702. Defendant has "attache[d] no affidavits in support of its contention that the documents . . . were prepared in anticipation of litigation," and Defendant "identifies no particular deposition testimony supporting the position that the documents . . . were prepared in anticipation of litigation." Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, 201-02 (M.D. Fla. 1990). The privilege log is barebones and contains almost no information from which the Court could determine that a particular document was made in anticipation of litigation, as opposed to for an ordinary business purpose. Defendant, therefore, has failed to show that any documents prepared prior to September 27, 2022, should be withheld under the work product doctrine. And Plaintiff has failed to show any substantial need for documents prepared after that date—documents that were presumptively prepared in anticipation of litigation. The Court, therefore, will compel Defendant to produce documents prepared prior to September 27, 2022, that are responsive to Plaintiff's RFPs.
B. The documents Plaintiff seeks are not beyond the scope of discovery.
In what the Court construes as a relevance objection, Defendant has argued that the information sought from the claim file is beyond the scope of discovery. That argument fails. The Federal Rules of Civil Procedure allow for robust discovery and reflect the "basic presumption [ ] that the public is entitled to every person's evidence." Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985). Generally, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). "At the discovery stage, relevancy is broadly construed." Fla. v. United States, 342 F.R.D. 153, 158 (N.D. Fla. 2022).
Defendant argues that the claim file is not relevant in a breach of contract action against an insurance company, as opposed to a bad faith action. (See Doc. 13 at 7). That argument in unpersuasive. This case is about the amount of damages Plaintiff's property sustained and the costs of repair. Certainly, information Defendant gathered during its claim investigation process may speak to those issues. See Banta Props., Inc. v. Arch Specialty Ins. Co., No. 10-61485-CIV, 2011 WL 13096151, at *3 (S.D. Fla. Sept. 15, 2011) (staging that "documents or testimony that relate to the investigation, processing and analysis of an insured's claim are discoverable in a first-party insurance coverage case"). Moreover, the Court has reviewed Plaintiff's RFPs 2, 3, 4, 5, 6, 8, 9, 10, 12, 15, and 19, and it does not appear as though the information being sought is aimed at a bad faith claim as opposed to a breach of contract claim. Plaintiff's RFPs are seeking information to help advance her case that Defendant breached its insurance contract by failing to pay the claimed damages. The information sought appears relevant—as that term is broadly construed for discovery purposes—to the claim being advanced. See Milinazzo, 247 F.R.D. at 695-96 (holding that claim file documents are relevant "in a first-party action against an insurer for breach of contract"); see also Banta Props., Inc., 2011 WL 13096151, at *3 (same). Thus, the Court rejects Defendant's argument that the documents Plaintiff has sought from the claim file are irrelevant and beyond the scope of discovery.
C. Plaintiff is entitled to reasonable attorney's fees.
Rule 37 of the Federal Rules of Civil Procedure provides that if a motion to compel is granted, then the Court "must" require the opposing party to "pay the movant's reasonable expenses incurred in making the motion, including reasonable attorney's fees." Fed. R. Civ. P. 37(a)(5)(A). "But the Court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." Id.; see also Batchelor v. Nationwide Mut. Ins. Co., No. 4:22cv81, 2022 WL 18586850, at *2 (N.D. Fla. Nov. 18, 2022) (stating that an award of attorney's fees is "mandatory" under Rule 37(a)(5) unless one of the exceptions applies).
Here, the Court has determined that Plaintiff's motion to compel has merit. The Court believes that Plaintiff attempted in good faith to obtain the requested discovery without court action, Defendant's nondisclosure was not substantially justified, and there are no other circumstances that would make an award of expenses unjust. Thus, Plaintiff is entitled to reasonable expenses, including attorney's fees, incurred in bringing the motion to compel. To avoid unnecessary expense and delay in determining the amount of the attorney's fee award, this order sets an amount, subject to redetermination. See Batchelor, 2022 WL 18586850, at *2-3 (setting amount of attorney's fees subject to redetermination); see also LaMonica v. Hartford Ins. Co., No. 5:20-cv-63, 2020 WL 9065890, at *2-3 (N.D. Fla. Oct. 20, 2020) (same).
III. Conclusion
For the reasons above, is therefore ORDERED that:
1. Plaintiff's Motion to Compel (Doc. 10) is GRANTED.
2. Defendant has fourteen days from the date of this order to produce to Plaintiff any information/documents created prior to September 27, 2022, that are responsive to RFPs 2, 3, 4, 5, 6, 8, 9, 10, 12, 15, and 19.
3. Defendant must pay Plaintiff $800.00 as attorney's fees under Federal Rule of Civil Procedure 37(a)(5)(A). If a party asserts that this is not the amount of fees reasonably incurred by Plaintiff on the motion to compel, then that party may move within fourteen days to redetermine the amount, and the matter will be reconsidered de novo. Attorney's fees may be assessed against the party who loses any such motion to redetermine. Payment must be made by March 7, 2023 (if no motion to redetermine is filed) or within fourteen days of an order on any motion to redetermine.
DONE AND ORDERED this 21st day of February 2023.