The Charter Oak Fire Insurance Company et al v. American Capital, Ltd. et al, No. 8:2009cv00100 - Document 273 (D. Md. 2013)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/06/2013. (Attachments: # 1 Unredacted Memorandum Opinion, # 2 Proposed Redactions)(bas, Deputy Clerk)
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IN CHARTER OAK FIRE INSURANCE COMPANY, et al. Civil Action No. DKC 09-0100 v. AMERICAN CAPITAL, LTD., et al. MEMORANDUM presently case pending is an objection Insurance America Company issued Schulze on July Production Nos. 213 by ready Travelers "Travelers" United or States & 214), and this Casualty "Plaintiffs") Defendants' with Defendants' (ECF Nos. 217 The insurance Magistrate Judge Defendants' Motion motion responses to Jillyn been For the following reasons, Plaintiffs' overruled. I . of Evidence seal K. to Compel filings to Plaintiffs' issues have Fire Company (ECF in objections briefed, court now rules, no hearing being deemed necessary. 105.6. Oak to a discovery Based on Newly Discovered connection 226). in The Charter Property 24, 2013 granting of Documents & for review filed by Plaintiffs and (together, ruling and OPINION and the Local Rule objection will be Defendants' motion to seal will be granted. Background On November Judge Schulze 27, 2012, this case was referred for resolution of all discovery to Magistrate disputes and for determination numerous (ECF No. of non-disposi tive matters. opinions in this case have come before familiari ty with the facts is assumed. 77, 184) 92, 170, regarding the & Because a discovery underlying request, factual and however, procedural object a brief issues As this one, some ECF Nos. (See Plaintiffs 145). 42, 64, to a ruling background in the on case is necessary. Beginning Laboratories, LLC (100) heparin. 1 2008, Capital"), ( "American hundred in Defendant and ("SPL") suits American pertaining involved to Many of the complaints about whether certain primary American Capital ("the Policies"). and the by Plaintiffs judgment action seeking Policies, or, alternatively, than defective A dispute heparin insurance policies filed rescission the or a declaration 2006 instant drug that implicate issued through to 2009 declaratory reformation that one subsequently lawsuits for the years Travelers more Ltd. Protein in these lawsuits allege underlying umbrella in allegedly SPL is a subsidiary of American Capital. arose Scientific Defendant became Capital, of the Travelers does not owe defense or indemnity coverage to either American Capital 1 According to the second amended complaint, "[hleparin is a drug that is used to prevent the formation of clots within the blood of humans." (ECF No. 67 ~ 21). 2 or any of its alleged subsidiaries for the underlying heparin lawsuits.2 During discovery, Defendants requested that Plaintiffs produce all claims handling materials relating to the underlying heparin involving and personal injury lawsuits Defendants. In response, Travelers produced a limited number of claims handling documents from August 2008, but withheld approximately documents, 2008 on most the anticipation also ground that of litigation provided withheld of which were created a such privilege documents is log protected on or after September documents and were both privilege and the work product doctrine. On November production 20, 2012, of the withheld (See ECF No. 125). First, Defendants are not covered by the attorney-client the relevant time period, created that the 2, in Travelers each of the attorney-client (ECF No. 122-5). Defendants documents were thus protected. indicating by 596 other moved based argued compel the on three arguments. that the documents privilege Travelers' to because, during in-house and outside counsel did not function as legal advisers but instead served as 2 In addition to the underlying heparin lawsuits involving SPL, Plaintiffs also seek a declaration that the Policies do not afford coverage for either American Capital or Defendant Spectator Management Group ("SMG") in connection with a separate lawsuit involving an injury suffered by a spectator at a sporting event. According to the second amended complaint, the complaint in that lawsuit alleges that SMG specializes in sportarena management and American Capital is SMG's parent company. (ECF No. 67 ¢ 29) . 3 claim handlers Second, contended Defendants protected by prepared in business of the the work claims Third, litigation. Travelers waived otherwise attached by of than posited privilege because Travelers' or in that, protection to the documents by not they were state-regulated anticipation in any that asserting a of event, may have rescission at issue the extent and timing of Travelers' regarding American are doctrine rather Defendants any claim that places knowledge course handling function. documents the that product ordinary business ordinary an performing the falsity of certain Capi tal in its insurance representations made (ECF No. applications. 125) On December 21, 2012, after conducting hearing, Judge Defendants' principles, are which 147, Judge Schulze documents including facts" motion, (ECF Nos. order. that Schulze facts "either and wi thin issued she 148) ruling granting confirmed in paperless As to the a applicable legal first held that the "general rule" is shared non-legal an 3 oral an later an extensive motions with opinions insurance or and company's created thoughts "ordinary by lawyers about the course of ) Judge Schulze ruled that Plaintiffs must produce to Defendants: all claims handling material prior to September 18, 2008; all claims handling material created on or after September 18, 2008, with the exception of attorney mental impressions or opinion which may be redacted; reserve information from September 2, 2008 forward; and reinsurance information from June 1, 2006 forward. (ECF No. 148). 4 business" and thus are not protected by either the attorney- client privilege or the work product protection doctrine. No. 77). held 154-1, at Second, documents created pursuant at all. that a (Id. factual is performed Applying by Schulze went on that ordinary to conclude business coverage for the underlying after September held that, protected Travelers rescission of refused that those waived Plaintiffs at (Id. knowledge created that Judge Schulze 154). clearly outside of Accordingly, discuss Judge created Judge Schulze further that after were presumptively September American 1B, 200B) , status by asserting Capital's a and timing purported for the subject policies. objections to things, Judge Schulze's Plaintiffs erred in determining 5 ) . for documents 78). Among other (Id. to in part, on the extent numerous whether 1B, 2 [OOB]," when Travelers protected about held to her, Judge "moved suits. in its applications filed (ECF No. case with documents any coverage counsel." on September the documents' misrepresentations this heparin claim that turns, Travelers' ruling. those regarding outside meet Schulze is not protected, "there is protection" to (i. e. , that to 1B, 200B. as or function Capital ruled Judge to the facts presented American Schulze company in-house these principles Third, ) . that Insurance Regulations investigation that is done by an insurance it Schulze to the Maryland are not protected "ordinarily, Judge (ECF argued that Travelers' communications with that occurred prior the anticipated the Plaintiffs that, privilege coverage Judge Schulze product outside at (Id. by coverage counsel 18, 2008 are not protected tying the 11-18). about conflated of the reasonably heparin lawsuits, the attorney-client privilege doctrine. the by First, applicability to the date when Plaintiffs litigation improperly work and privilege. contended attorney-client in-house to September attorney-client Plaintiffs with its (Id. at 13). Second, argued that Judge Schulze clearly erred by concluding that, before September primarily for the Capital's insurance 18, 2008 Travelers business claims purpose because consulted with counsel of adjusting "[n]othing in American the record suggests that coverage counsel was retained to conduct a factual investigation regarding provide advice." legal argument, Plaintiffs coverage (Id. cited at to or do anything 12-13). the In support than of this testimony deposition affidavit of Edward Zawitowski, a non-attorney other and claims handler at Travelers, (Id. at By 2013, 15-16). memorandum opinion the undersigned and overruled and sustained them in part. order issued Plaintiffs' on objections (ECF Nos. 170 & 171). 6 February 11, in part Applying the deferential standard of review required by Federal Rule of Civil Procedure 72(a), conclusions I found regarding attorney-client the privilege I privilege, holding that Plaintiffs those documents the error presumptive in Judge Schulze's applicability of the and the work product protection. interpreted client establishing clear Specifically No. 170, at 12-16) of no (ECF with respect to the attorneyJudge Schulze's ruling failed to meet their evidentiary privilege's created before presumptive September 18, as burden applicability to 2008, it because was only as of that date when Judge Schulze viewed the evidence as establishing counsel primarily capacity. Schulze's rescission scope of Schulze's related that Plaintiffs in (as legal at 15-16). (Id. consulting opposed to with coverage a business) The opinion went on to uphold Judge ruling that Plaintiffs waived privilege by asserting a claim, but sustained Travelers' the relief ruling on 18, the waiver 2008.4 of privilege rescission The objections Specifically, awarded. to Plaintiffs' September a were I as to the limited Judge for the documents claim that were created opinion confirmed that after "it is 4 As a result of the waiver ruling, Judge Schulze ordered production of all withheld documents created after September 18, 2008, with redactions only for attorney impressions and opinions. I sustained Plaintiffs' objection on this ruling, holding that "what is relevant to the issue of promptness is limited to the timing of Plaintiffs' investigation into, and conclusions about, the facts that American Capital allegedly misrepresented in its insurance applications. (ECF No. 170, at 7 irrelevant documents whether that employees, such were in-house factual created by counsel, information Travelers' or outside is contained non-attorney coverage in claims attorneys. Consistent with Judge Schulze's ruling, attorney impressions legal opinions Furthermore, may I instructed [post-September issue of redacted." (ECF No. that "[i]f Plaintiffs 18, 2008] documents entirety because the be 170, such should be withheld documents must be than 4,900 1, 2013, pages Plaintiffs of previously produced withheld in their relevant to submitted Judge Schulze for in camera review" by March 1, 2013. On March 26). contend that any they contain no factual information promptness, at and (Id.) to Defendants documents to 5 more pursuant to 25) . Consequently, I ordered that Plaintiffs produce all documents (or portions thereof) indicating - as a factual matter when Travelers began to investigate whether, or reached a conclusion that: (1) American Capital had subsidiaries; (2) American Capital acquired SPL in 2006; (3) American Capital acquired SMG in June 2007; (4) American Capi tal had been named as a defendant in a heparin lawsuit prior to submitting its 2008 renewal application to Travelers; (5) the suspected tainted heparin and heparin's active pharmaceutical ingredient had been recalled in early 2008; (6) the allegedly tainted heparin ingredients had been processed in China; (7) SPL participated in a joint venture that processed heparin sodium API in China; and (8) the heparin lawsuits predating American Capital's 2008 renewal application sought damages in excess of $10,000. (Id.). 5 On February 15, 2013, Plaintiffs filed a motion for reconsideration of the "limited portion" of the undersigned's ruling regarding the applicability of the attorney-client privilege to documents created before September 18, 2008. (ECF No. 172). That motion was denied on May 17, 2013 because Plaintiffs simply reiterated previously rejected arguments. (ECF No. 184, at 7) . 8 the February date, 11, 2013 Order. Plaintiffs review July all 27, also of the 2012 Defendants in documents did enumerated in however, Tr.) telephonic resubmi t the certify none of Plaintiffs' privilege February 11, 12, review documents 193, III, at personally the 11), along with with a Plaintiffs' reviewed and believed format that at to to in [the] 9 responsive Hr'g. Judge indices attested for documents has to the Tr.). Schulze from James each document submitted "none of by a 7, who a counsel accompanying attorneys, held to post-September certification Hr'g. 2008 documents 18, (ECF No. 183, 6, Plaintiffs Plaintiffs' log had any information withheld at accompanied fashion post-September resubmitted particular Schulze directed not, documents to ECF No. 183, Judge those did to the from categories Plaintiff organize directed fully tabbed of the camera Plaintiffs' eight documents she an indexed Plaintiffs in one in the 2013, which 2013 Order. 2013, of the 3, from in believed (See She further log. that camera during documents new privilege April review. for Plaintiffs 2013 Order; on April hearing, Schulze same withheld or meaningfully court's On the Plaintiffs any linking 6) documents because 11, index Consequently, . Judge that into February entries the log fall an to handling entirety not log facilitate claims their include privilege submitted privilege the (ECF No. 193, at On for in 2008 18, (ECF No. E. Rocap, that he in camera review any information that is on Judge Chasanow's On April 193-9 ~ 8).' list of relevant 26, 2013, Plaintiffs (ECF No. facts . ¢ also provided more descriptive versions of their July 27, 2012 and January 18, 2013 privilege logs. On May "Defendants' 9, 2013, Defendants Opposition of Plaintiffs' to Plaintiffs' Vaughn Indices,.7 a motion to compel production on newly this discovered submission, evidence, submitted evidence. Defendants not anticipate Counsel's entitled certification which Judge Schulze construed as of claims handling materials (See ECF Nos. argued including two new depositions Seitz, Travelers' a document that 186 & newly based 193).8 discovered of Mr. Zawitoski and Ms. in-house counsel, revealed that Plaintiffs litigation "any earlier In than December did 8, 2008, , Mr. Rocap noted that Plaintiffs included drafts of the complaint in the set of documents submitted for in camera review because "they are not statements of facts, but are counsel's non- final formulation of allegations. They are also, in their entirety, attorney impressions or opinions.. (ECF No. 193-9 ~ 8). Defendants later explained their position that they "do not seek the legal analysis reflected in draft complaints and draft correspondence, but if there are recitations of purported facts on those complaints (which there must be) or in draft correspondence, Defendants are entitled to see those facts pursuant to the Court's Order." (ECF No. 195, at 18). 7 Plaintiffs assert that they did not submit "'Vaughn indices' nor did they understand the Court to have directed them to do so." (ECF No. 217, at 2 n.2). 8 As Plaintiffs' counsel notes, this motion was submitted The directly to Judge Schulze without docketing on PACER. as ECF No. motion was subsequently docketed on July 17,2013 193. 10 or December Plaintiffs were 19, performing functions handling Defendants December sought 2008 business, Defendants agreed Plaintiffs opposed Defendants are to date them, and anticipated 19) that is inclined on provide an in counsel, to regarding counsel's Declaration June any September for Leave to (Id. at Court 9 The opposition the that "anticipation Plaintiffs 2008." of available "reasonably (ECF No. 199, at with further are prepared to Declaration of additional in the Fall 2008. information, information Because Plaintiffs with this Opposition, Declaration was docketed 199) 11 on an in such a camera are a Motion . 47) submit log that arguing was previously a basis simultaneously pre- the exception 2013, these issues, Plaintiffs actions of stated that "[ilf the Court would contain privileged first submitting, with 7, event, Plaintiffs the claims Consequently, a new the evidence camera provide on by to revisit that (ECF No. 192, at 7, 29-37). in litigation legal, on the privilege from proposing In the opposition, 9 redactions, identified motion because than and (9) categories nine were protected. estopped 6) 2008. without this rather at of production documents 193, December before of "forty or so" documents litigation" (ECF No. 2008" on July 17, 2013. basis." (ECF No. On submit the same date, declaration motion, of Plaintiffs Plaintiffs Paul filed a motion Janaskie, argued that in Esq. although for leave camera; that deemed they in the privilege logs "sufficient to allow the Court to evaluate privilege claims in an abundance of the Court Janaskie, in camera Plaintiffs' Plaintiffs' assertions product protections." to Plaintiffs' camera declaration declaration outside of executed coverage counsel, attorney-client if of and motion Paul Janaskie for by in Mr. leave 26, Paul support and Defendants on June should not be permitted to submit privilege (ECF No. 202, at 2) .10 opposition declaration that Plaintiffs a [the] caution deemed necessary by the Court, Plaintiffs are prepared to to replied submit 2013, (ECF No. that. Plaintiffs' submission "Defendant.s having arguing to submit an in camera 195, at. 17-18). broad assertions of documents for in a fact chance to camera submission. (Id. at Defendants of camera check milit.ated against. grant.ing Plaint.iffs' motion 10 in because a fact witness. previous of work Mr. Janaskie argued to further privilege review, is and wi t.hout. t.heir statements" for yet another in 18) . This motion was also docketed on July 17, 2013. 202) 12 (ECF No. On July 24, 2013, Judge Schulze granted Defendants' motion to compel and deferred ruling on Plaintiff's motion to submit an in camera declaration Schulze ordered documents Plaintiffs sole Plaintiffs' that proffered responded 8, Schulze erred motion to considering of Paul Janaskie (ECF opposition No. on 217) August replied on September in . 29, 16, 2013 also filed a motion to seal on August (ECF No. 226). Standard of Review Under matters 28 !l 636 (b)(1), U.S.C. may be referred A determination. been erroneous shown or that contrary non-dispositive to a magistrate district portion of a magistrate has not compel. Plaintiffs' Defendants handling (ECF No . 214). 11 by in camera declaration to claims 2008. 29, 2013, which Plaintiffs did not oppose II. all Judge to the July 24, 2013 Order on the (ECF No. 223) and Plaintiffs (ECF No. 234). produce December Judge Defendants' Defendants 2013 before to filed an objection ground deciding Plaintiffs created (ECF No. 213) of Paul Janaskie. judge may judge modify judge'S non-dispositive the to magistrate law." 11 judge'S Id.; see pretrial for hearing or set aside ruling order also and any "where it is clearly Fed.R.Civ.P. In addition to the nine categories of pre-December 2008 documents, Defendants sought disclosure of two additional categories of withheld documents post-December 8, 2008. (ECF No. 193, at 36). Judge Schulze deferred consideration of Defendants' claim that Plaintiffs have waived protection for post-December 18 documents relating to counsels' rescission advice. (ECF No. 213, at 11). 13 72(a); Local receive further magistrate The while Rule 301.5.a. evidence or erroneous" legal conclusions MMI Prods v. [district) recommit judge with instructions." "clearly to law." "The standard judge the to also to the matter 28 U.S.C. applies may ~ 636(b)(1)(C). findings, if they are will be rejected factual "contrary 231 F.R.D. 215, 218 (D.Md. 2005). Long, Under the clearly erroneous standard, the reviewing court is not to ask whether the finding is the best or only conclusion permissible based on the evidence. Nor is it to substitute its own conclusions for that of the magistrate judge. See Tri -Star Airlines, Inc. v. willis Careen Corp., 75 F.Supp.2d 835, 839 (W.D.Tenn. 1999) . Rather, the court is only required to determine whether the magistrate judge's findings are reasonable and supported by the evidence. Id. "It is not the function of objections to discovery rulings to allow wholesale relitigation of issues resolved by the magistrate judge." Buchanan v. Consolo Stores Corp., 206 F.R.D. 123 (D.Md. 2002). Int'l of Machinsi Ass' n ts & Aerospace Workers V. Wener-Matsuda, 390 F.Supp.2d 479, 485 (D.Md. 2005). III. Analysis A. Plaintiffs' 2013 Order Objections to Judge Schulze's July 24, On July 24, 2013, Judge Schulze issued a memorandum and order Defendants' based granting motion handling documents to on compel and deferring 14 newly discovered pre-December 8, opinion evidence 2008 claims ruling on Plaintiff' motion for leave to submit (ECF Nos. 213 to declaration should 214).12 July 24, 2013 not the & have Plaintiffs' On August Order made proffered of Paul on camera in findings submission camera opinion, Plaintiffs Judge relating documents consideration of camera document at 11) received may, within objections protection counsels' to Plaintiffs' Schulze motion further Plaintiffs' thirty days, to Plaintiffs' Schulze considering in support dated of their for privilege after December claim "[0] 18 advice, to submit log." 8, 2008 and an in (ECF No. 213, nce Defendants documents, their previously logs. she post-December for leave pre-December that of Defendants' s;:ated that supplement stated rescission to supplement the privilege Judge have waived objected Judge without Schulze review of documents have that Camera. In (ECF No. 217, at 2) .13 8, 2008, and thus will defer consideration that Esq. Plaintiffs ground factual In the memorandum in 12,2013, the privilege and work product claims. "will defer Janaskie, they submitted The court will then Defendants identified forty-four (44) privileged documents on Plaintiffs' privilege log which they did not seek Plaintiffs to produce. (ECF No. 193, at 37) Thus, the July 24, 2013 Order to produce pre-December 8, 2008 documents does not encompass these documents. 12 13 Plaintiffs assert that the July 24, 2013 ruling was docketed, but counsel first received the Order on August 5, 2013. (ECF No. 217, at 4 n.6). Thus, Plaintiffs timely objected within fourteen (14) days from receiving the Order. See Local Rule 301. 15 determine how to handle any Judge Schulze also observed (Id.)." in remaining camera that Plaintiffs' 2013 resubmission of documents previously withheld review to 2013 (pursuant the February documents dated prior to December in need camera review" given Plaintiffs did not anticipate Thus, Judge Schulze 11, created before protected, with the exception Schulze's that Plaintiffs date of the forty-four any that Judge Schulze remaining in Plaintiffs inappropriately stated camera have that review, unduly responded contained [would] not to delayed the are any not (44) privileged how consider that to handle "the fact [and] discovery order 8, 2008. produce they that (ECF No. 213, at 11 in determining she would camera finding to because documents which Defendants did not request. n.4) Order) litigation until December instructed documents April 12, for in 8, 2008, "and this Judge review." they produce " Plaintiffs produced pre-December 8, 2008 claims handling documents on August 15, 2013 and August 22, 2013 and "transcribed versions of handwritten notes that were part of those August 11 and August 23 productions on September 12, 2013." (ECF No. 235 , 3). Defendants were scheduled to depose Tracy Seitz, Travelers' in-house counsel, on October 8, 2013 "specifically on the subject matter of the documents produced by Plaintiffs pursuant to the Court's July 24, 2013 Order." (Id.' 4). On September 19, 2013, Defendants requested and Plaintiffs consented to - an extension of time until October 30, 2013 to file, if necessary, a motion to compel Plaintiffs' postDecember 8, 2008 claims handling documents, in order to have sufficient time to incorporate Ms. Seitz's deposition testimony into any submission Defendants may make. (Id.' 5) Judge Schulze granted Defendants' motion for extension of time on September 23, 2013. (ECF No. 237). 16 for in documents without camera review, dropping off two large boxes any attempt document, much less privilege log." (Id. Plaintiffs Schulze's limited match any at the their privilege 11) that with they "the ground Magistrate in document although findings, Plaintiffs' proffered or meaningfully identify Judge's at (Id. entry disagree for this decision to she made proffered factual Plaintiffs attempted argue "to pre-December declaration findings that submit a on by in an in further support of camera allegedly proffering more the particularized 18, 2008 documents is consider essentially challenge Judge Schulze's decision to defer consideration Plaintiffs' a Judge Objection Plaintiffs 6). on with not camera submission claims." an any 15 state factual to to organize of the on the ground incomplete record. declaration, showing" that that they the (ECF No. 217, were privileged. at 8). Judge whether to Schulze conduct acted an in within camera her discretion review of Paul in deciding Janaskie's 15 Judge Schulze noted that this "dump on the court alone could have justified a ruling that Plaintiffs were not entitled to withhold those documents." (ECF No. 213, at 11); see Barr Marine Products Co., Inc. v. Borg-Warner Corp., 84 F.R.D. 631, 636 (E.D.Pa. 1979) ("[A] party resisting discovery on the ground of the attorney-client privilege must by affidavit show sufficient [f]acts as to bring the identified and described document within the narrow confines of the privilege. Nor will submitting a batch of documents to the Court [i]n camera provide an adequate or suitable substitute.") . 17 declaration United before States ruling on Defendants' Court of Appeals motion to compel. for the Fourth Circuit The has held that: [el videntiary privileges may serve as valid bases to block the disclosure of certain types of evidence, and the validity of such privileges may be tested by in camera and ex parte proceedings before the court "for the limited purpose of determining whether the asserted privilege is genuinely applicable." United States (quoting 1986) ) v. Abu Abourezk v. (emphasis Ali, 528 Reagan, F.3d 785 When added). 210, F.2d a 245 1043, party (4th Cir. 1060 2008) (D.C. Cir. refuses to produce documents during discovery on the basis that they are privileged or protected, for basis Guidelines Inc., it that the burden claiming documents, providing 251, and do so in information itself privileged parties assess the to requirement Inc. v. Creative pipe, Specifically, nature tangible a Discovery "describe must or evidentiary (D.Md. 2008). 254 n.2 privilege an 26(b)(5), Fed.R.civ.P. claim. communications, disclosed This of 9.c; see also Victor Stanley, 250 F.R.D. party has manner or the things that protected, Fed.R.civ.p. claim." not the produced without will of a revealing enable other 26 (b)(5)(A)(ii). was added in the 1993 amendments to the Rules of Civil Procedure, and in the words of the advisory committee: [asserting privilege/protection] The party must also provide sufficient information to 18 or enable other parties to evaluate the applicability of the claimed privilege or protection. Al though the person from whom the discovery is sought decides whether to claim a privilege or protection, the court ultimately decides whether, if this claim is challenged, the privilege or protection applies. Providing information pertinent to the applicability of the privilege or protection should reduce the need for in camera examination of the documents. Fed.R.Civ.P. In 26 advisory committee's note written protection is maintained ensuring discovery, asserted thereafter properly involves in (emphasis added). the several a that privilege or instance and first "First, steps. pursuant to Federal Rule of civil Procedure 26 (b)(5), the party asserting privilege/protection document, must can log that this claimed, regarding the communication, nature of the of No. PWG-11A party 16, 2013). prepared withheld, the privilege and contains privilege/protection making/receiving person Guideline, 10.d; subject Discovery Paul W. Grimm, Problems contents of matter. and Their effective 19 e.g. , See, Charles each which for Ngoubene, a properly document for the date and place of the communication, general (suggesting v. (D.Md. Aug. the name document's Sandler, Elat through each particularity documents, of at *5 burden identifies information with is claimed." 2013 WL 4478190, sustain so category or privilege/protection 29-31, do S. Fax, Solutions, privilege log). & the and the Discovery Paul 62-64 If, Mark (2005) after this has been sufficiency party may burden done, the of the asserted no of longer rest establishing deposi tion transcript, A of document. must be on the privilege evidentiary or other to do produced log, but by bears affidavit, of Elat, a dispute looking party, is at ruling that the failure of the No. PWG-11-2931, 2013 the "If it makes this showing and the requesting can disputed ready the to submit evidentiary to support rule on the merits documents of or category party still contests the assertion of privilege/protection, the the - for each element so warrants because the the asserting for each document asserting party to meet its burden. WL 4478190, at *5. challenges basis evidence claimed failure party privilege/protection, an each privilege/protection documents requesting be produced the court, offered of the claim for in by which, the or order then after asserting that the camera inspection." Id. (emphasis added). Here, 8, 2008 Plaintiffs claims could not establish handling documents that the pre-December were privileged. Thus, Plaintiffs now argue that Judge Schulze rejected their privilege claims based on an incomplete record. not shown incomplete that record consideration Janaskie's the July of and 24, that Plaintiff's declaration in 2013 Judge Plaintiffs, ruling was Schulze's motion for however, have premised decision leave to upon to submit defer Paul camera was clear error or contrary 20 an to law. to In fact, compel not Judge on July anticipate Schulze 24, 2013 - litigation considering new granted and until evidence determined after employees did not previously claimed" and after Plaintiffs submitted Specifically, to in compel reviewed production Tracy 193-6), and (ECF No. first 193-5, claims at merits activities September from two of early as the documents that 213, Defendants' at 6). new motion Judge April 26, 2013 (ECF No. from April 9, 2013 for the which he by Schulze "testified in-house (ECF No. 2008." after documents, performed 18, - least (ECF No. of handling during 2008 as new deposition 19-79), 8, did litigation review. deposition motion Plaintiffs "at reviewing the Zawitoski's about after of Seitz's Mr. time counsel evaluating that anticipate in camera second that December showing Plaintiffs' for Defendants' 213, and at outside 4). Judge - -- -- -- -- - - - Schulze considered 193-22) , (ECF No. consequently, September and outside 18, 2008 entailed that many by Plaintiffs' activities counsel concluded performed she (ECF No. 213, Co., 138 F.R.D. held that at "ordinary 4); see also 655, 662 (S.D.Ind. documents claims Harper constituting any 21 v. 1991) part of in-house handling matters." Insurance Auto-Owners ("[mJost of a post- the courts factual have inquiry into a or evaluation claim of a claim, decision, are insurer's business California State ("[t]he produced and Auto. connection undertaken in not be assurance that the routine course Ins. Co., insurance its files are has a duty with respect For Zawitoski 198, 202 reasonably investigate, to claims made on it the v. that being provide material prepared will not Foods v. 1988) the anticipation by its to (M.D.N.C. evaluate April as Fast argue in material business Rinaldi's accumulated in so insurance to instance, an Schmidt the processing Pete F.R.D. company cannot claims when it 123 concrete the immunized from discovery."); Am. product."); of of claims of course at 182, 184 (D.Nev. 1989) sufficiently ordinary ordinary arrive litigation to possible must the to 127 F.R.D. prepared in the work Assoc., in order of be Great (" [a]n entirety of litigation and make a decision insured."). 26, 2013 deposition, Mr. -- ------ -------(ECF No. 193-5, 22). Mr. Zawitoski further testified _ (Id. (Id. at 48) 22 Mr. Zawitosky at 27) stated _ _ at ---- ------- ---- --- -24-28, 48-50). Judge Schulze testimony also (See considered Mr. id. at Zawitosky's _ (Id. at 47). Judge Schulze recognized that Mr. Zawitosky's new testimony Judge that this Schul ze determined, however, _ especially given (ECF No. at 5) 16 Moreover, -from 213, April 26, Judge 2013, Schulze assessed _. during which she Ms. Seitz's --- testified (ECF No. 193-6, 16 The undersigned also previously agreed that "a fact finder could reasonably disregard testimony as being conclusory and self-serving, given Plaintiffs' broad assertion of privilege." at 16). 23 deposition at 22-23) _ with Defendants Mr. Zawitosky's particularly (ECF No. 170, IIIIIIII - (id. at - 8). Ms. Seitz IIIIIIII _ ¢ further ¢ ¢ ._- at (Id. 9) the December 8, appropriate of burden and this of in ordinary new evidence, 6-7); see Nat'l Sheet Metal that the ). Defendants' the 8, sustain in their 2008 documents were as opposed handling. to the (ECF No. 213, Co. of Pittsburgh, Ins. that, at v. Murray Pa. litigation document must means that of the because course these contend the prospect of of Judge (holding litigation," business." reasons, that would have aided relied new motion not claim 1992) "ordinary pre-December Schulze may finding did litigation 2008, as and (emphasis Schulze in granted second motion to compel. Plaintiffs Janaskie 18, Plaintiffs pre-December Schulze 967 F.2d 980, 984 (4th Cir. of For September protection, of claims Fire Inc., "prepared in original) Union Co., when Plai:ltiffs of purpose anticipation not the anticipation business have been date work product showing that prepared than _ ¢ Judge rather critical attorney-client light 2008, on Based ____ identified - explained to on 2008 the Judge documents sufficient compel without proffered Schulze are 24 in of determining whether privileged. evidence having declaration to in But granting consider Paul Judge Defendants' any additional proffered in Laboratories camera, the Court seek to Prowess, (rejecting plaintiff's where plaintiff in request argued determining compel are that whether the Paul Plaintiffs concede that "their sufficient to if allow it chooses Plaintiffs added) . abundance of necessary by protections with tune incomplete an in (Id. ) and record, of deferred review Janaskie - which declaration necessary for motion compel, to declaration instead, her Plaintiffs was essential Plaintiffs to "in an if deemed review, of Plaintiffs' work Plaintiffs added). Schulze in Defendants' camera declaration initially Moreover, not simply asserted 25 Schulze's that on favor an and from Paul argued was not in opposing argue change relied in Judge product camera documents challenged Judge did (emphasis only Plaintiffs review. are privilege 2) support she ruled a proffered to in that only after those and for camera, logs such pri vi lege (emphasis now argue in camera declaration facilitate the motion privilege evaluate in to the (ECF No. 202, at attorney-client Defendants." their to Court respect in Defendants declaration to do so." *15 (D.Md. "document would aid fact, existing court and to the of the offered caution assertions by RaySearch documents that Janaskie's to claims, v. to submit document the In privileged."). submit leave Inc. AB, No. WDQ-11-1357, 2013 WL1856348, at Apr. 30, 2013) in See camera material. that the factual "in order Defendants' in camera findings; to assist the Court in deciding revisit them, camera basis [the Plaintiffs of 2008," There is declaration to the no information indication if to it with to on the logs." confirm to the basis - in accordance intend factual litigation any July finding earlier Defendants' an "in 24, that than in camera vital motion Plaintiffs for - or have already Plaintiffs did December 8, 2008. of the documents suggest 2013 Order will to stated camera Declaration Plaintiffs 31). to produce with the Schulze's at in information of the privilege (ECF No. 199, documents they to the actions proffered evidence. submit to provide in (emphasis added) . the respect to on an counsel's 10-11) that inclined provide regarding on newly discovered is of counsel, (ECFNo. 199, at were prepared counsel the prepared Declaration decision-making they issues would have adduced any additional compel based that are - a further Court with additional the Fall privilege] produced dispute not that Judge anticipate Specifically, ---------Plaintiffs argue that "documents that will be (ECFNo. 217, at reviewing the considerable Schulze determined communications that related record in this case, produced 8-9 n.9). to claims 26 handling, After however, both the pre and post-September and was not _ Judge 18, 2008 prepared in anticipation " [tJhe court of has litigation. already Specifically, ruled, three failed to show that they anticipated she times, stated that Plaintiffs litigation before September 18, ECF Nos. 148, 170, 184, and reliance on activities before that decision date to examine failed any event, an the 8) previously same She as event, anticipating further found that 18 possession as had in their of litigation, 18 communications post-September a post-September raise to occurring any anticipation earlier "[tJhe at they In misplaced. is not 213, which communications evidencing coverage (ECF No. litigation." Plaintiffs is accordingly that and that all in were written by, or in one case to, Mr. Zawitoski, at 9) (Id. Moreover, argue, as Defendants in the declaration in motion date. - . -. .. - an See Schulze to the showing documents litigation" leave that camera, additional 17 for correctly Maxwell similarly I ¢ ¢ ¢ ~ ~ II state, Plaintiffs submit Paul declaration earlier v. South found did not Janaskie's would include "anticipation Bend Work misplaced t. I .17 of Release Plaintiffs' ¢ ¢ ¢I (See ECF No. 193-12; see also ECF No. 213, at 9). that Defendants' Judge Schulze also properly asserted anticipation of litigation is immaterial to when Plaintiffs anticipated litigation. 27 Center, 3:09-CV-008-PPS-CAN, NO. judge and raised for the first time in the objections the States v. Moore, district judge are raised *2 magistrate before not at Oct. 25, ("Arguments 4318800, (N.D.Ind. filed 2010) WL 2010 waived") 375 F.3d 580, 584 n.2) before Uni ted (citing Cir. 2004)). pth a Even if Plaintiffs made this argument before Judge Schulze, they have not established motion with was that the decision to defer ruling on Plaintiffs' clearly Plaintiffs' Judge Schulze issue her erroneous or contrary own prior admission, to accept ruling, and intended to facilitate the review already submitted camera. Practice Assocs. 1995) ("Prior sufficient application review a not claimed privileges Judge Schulze not genuinely leave that United States F.R.D. 624, 162 in camera review showing of or a other effective there legitimate to only Plaintiffs v. Family (S.D.Ca. first issue be as a to In camera testing of the protection. and protection."). determined applicable that the asserted privileges were based on her review of the affidavits, and documents produced - all of which conclude that in-house and outside counsel performed claims handling, was 627 must adversarial for declaration See Diego, replace for of documents San privilege camera motion an to of in of evidentiary should deposi tions, in Consistent law. it was not necessary a proffered Plaintiffs' to led her traditional rather than legal, functions before December 28 to 8, 2008, and thus communications Notably, protected. privilege that date were not See In re Allen, 106 F.3d 582, 601 (4th ("a district court's holding that the attorney-client does not protect determinations Stanley, to Plaintiffs do not challenge Judge Schulze's factual determinations. cir. 1997) prior Inc. of v. communications As fact"). Creative pipe, Judge rest[sl essentially Grimm observed in on Victor Inc.: lilt should go without saying that the court should never be required to undertake in camera review unless the parties have first properly asserted privilege/protection, then provided sufficient factual information to justify the privilege/protection claimed for each document, and finally, met and conferred in a good faith effort to resolve any disputes without court intervention. 250 F.R.D. at 266. Here, Plaintiffs made a strategic taking an "all-in" approach with respect and work product on a complete did not record and adjusting primarily insurance claims. at 6-7). Cir. 1982) See United States continue privilege concluded, evidence, that for the ordinary business It goes without Jones, (holding that the burden 29 material purpose of saying that if the or inaccurate, to sustain that burden" v. based Plaintiffs to show that the disputed is later shown to have been misleading it is no longer sufficient to to asserting but Judge Schulze sufficient "sustain its burden was not prepared evidence protection, decision 696 F.2d (ECF No. 213, 1069, 1072 is on the proponent (4th of the privilege to demonstrate relationship existed, communications at "not was not are the camera, were privileged, provide the very pre-December basis in it for camera - documents that allegedly that "Mr. Janaskie' s In Camera Declaration and authorized him Travelers' claims protections with by to Defendants, declaration Prowess, motion plaintiff the that Plaintiffs itself attorney or declaration did be submit failed document itself a to the was privileged the to that has support and work product 2). Despite would include at not wish to that or in camera basis for or protected) 30 in confidential Court privilege privileged document for provide argued Travelers that the created Plaintiffs No. WDQ-11-1357, 2013 WL 1856348, to supplement were not have not demonstrated would an not in camera documents challenged 202, Travelers in review to only the (ECF No. that information to submitted would present of attorney-client respect Defendants." assertion disclose of to information protected burden did determined of privileged their explain to anticipation privilege Plaintiffs Further, litigation. the 2008 documents, Schulze she already particular the sustain follows Judge attorney-client and that to 8, an that privileged By failing showing that that also but issue waived.") declaration only this broad privileged disclose the in camera protected. at *15 review asserting to See (denying a where the that the Even in affidavits, they allowing the where courts recognized in 1994) (" [iln ultimate court district See Pack v. both camera affidavits district may the and instances, it, all justification (citing in whatever 922 (3rd Cir. in Beyer, v. submission of the Court in camera, F.R.D. ex parte at n.1. to consider of would further of record compel. See (" [W] cannot e the district relying determine United ignore courts, of States the disputed Judge acti vi ties whether States the its court or private, of Schulze affidavits did an 157 find it camera in purported by counsel in sufficient factual to Defendants' motion the to 491 U.S. 554, 571-72 (1989) in may well 31 but with not Plaintiffs and grant the sufficient, proffered that Notably, "normally developed burdens Justice, information." undertaken v. Zolin, which that augment the counsel on a and at district Dept. would be Plaintiffs' outside explain 2008, to its the observed to Here, arriving (emphasis added)) affidavits review 227 declaration 1981)) necessary in exceptional authorized form, public United court appropriate found it necessary Fall the 226, advanced by the government for Lame v. 654 F.2d 917, in are them camera discretion and the submissions In both to Pack ordinary in 157 F.R.D. Beyer, to must have furnished non-disclosure." allowed court's resort determination. of the detailed have the such submissions. 229 (D.N.J. case, cases camera be review required places to upon evaluate large the evidentiary parties. judge in Before should support require at basis by a reasonable only v. Coleman ("[R]esort to the burdened that and No. 02 civ. 22, 2003) routinely, submitted (holding but an in evidence other to camera review has to submitted extent the 3392, 2003 WL161340, in camera only after adequate evidence (internal party after to No. 93-CV-6733, 1995 Co., 1995) v. Paduano, be undertaken has adequate privilege/protection]".) Caruso may reveal by 'the person' [of Weber privilege a factual materials *14 (S.D.N.Y. Jan. not guidance camera review the affidavits possible."); at belief *1 (E.D.Pa. appropriate detailed in a showing of omitted)); WL 384602, in claim the citations open adversarial of review establish without engaging a good faith camera is records the record review party to should asserting support the claim) . A review July to 24, examination will the record demonstrates 2013 Order was neither law and Plaintiffs' of she acted of a outside well clearly within proffered counsel. in her that Judge erroneous discretion camera Accordingly, Schulze's nor in contrary deferring declaration Plaintiffs' from objection be overruled. B. Motion to Seal A motion to seal must comply with provides: 32 Local Rule 105.11, which Any motion seeking the sealing of pleadings, motions, exhibits or other papers to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protections. The Court will not rule upon the motion until at least fourteen (14) days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials. Local Rule 105.11 This rule endeavors (D.Md. 2011). the common law right documents, Nixon to inspect Warner v. (1978), while recognizing outweigh the public's and copy Commc'ns, that judicial Inc., 435 competing In right of access, to protect records U.S. interests re Knight and 589, 597 sometimes Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984). Before non-moving sealing party opportuni ty satisfied courtroom to by any with documents, notice obj ect. either the consider less issue." notifying drastic redacted versions Id. the This Id. or by docketing deciding of the the 234. alternatives of the documents. 33 must request to notice the motion at court provide the seal and an requirement may be persons present "reasonably Finally, to sealing, in the in advance the court such as of should filing If the court decides that is sealing appropriate, should it also provide reasons, supported by specific factual findings, for its decision to seal and for rejecting alternatives. Id. at 235. On August 29, 2013, Defendants seal filings Plaintiffs' objections (ECF No. 226). to of the documents "constitute or 'confidential' all pursuant (ECF No. 226 , 5). [opposition] is replete designated 'confidential' seal. opposition the II motion Defendants filed (Id. , the parties' to seal will of exhibits, on filed 112 with 113) & the and opposition that testimony Protective are Order." further argue that "[bJecause the references to and that discussions the parties to the Stipulated unredacted Protective filed an opposition Stipulated pursuant copies Defendants 6). 24, 2013 Order. (ECF Nos. testimony and accompanying Stipulated disclosure The deposition Defendants Order the with to Defendants point to the court- deposition Defendants and under July a number exhibits to documents Order, including Protective response Defendants' Schulze's (ECF No. 225) Stipulated that to Judge objections, August 29, 2013. emphasize with As noted above, Defendants Plaintiffs' approved connection in filed an unopposed motion to of thus the of have Protective [opposition] request that its exhibits be sealed to "give force to Order, and confidential be granted thereby to from (Id.' 8). information." for the reasons have already redacted the appropriate 34 protect asserted. material in the copy that was electronically filed (ECF No. 223) and have filed both complete and redacted versions with the Clerk's office. Furthermore, to determine as before, what portions information that is under seal. Opinion will be filed under it and suggest will not endeavor (if any) of this Memorandum contain to review the undersigned Rather, the Memorandum seal, and the parties jointly any necessary Opinion are directed redactions that should be made before it is released to the public docket. IV. Conclusion For overruled. the foregoing reasons, Defendants' motion Plaintiffs' to seal objection will be will granted. separate order will follow. lsi DEBORAH K. CHASANOW United States District Judge 35 be A
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