Allendate Mutual Insurance v. Bull Data Sys., Inc.

145 F.R.D. 84, 1992 U.S. Dist. LEXIS 17498
CourtDistrict Court, N.D. Illinois
DecidedNovember 10, 1992
DocketNo. 91 C 6103
StatusPublished
Cited by56 cases

This text of 145 F.R.D. 84 (Allendate Mutual Insurance v. Bull Data Sys., Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allendate Mutual Insurance v. Bull Data Sys., Inc., 145 F.R.D. 84, 1992 U.S. Dist. LEXIS 17498 (N.D. Ill. 1992).

Opinion

MEMORANDUM ORDER

BOBRICK, United States Magistrate Judge.

Before the court is the motion of defendants Bull Data Systems, Inc., Zenith Data Systems, S.A., and Zenith Data Systems Europe, S.A. (collectively, “ZDS Defendants”), for an order compelling plaintiffs Allendale Mutual Insurance Company (“Allendale”) and Factory Mutual International (“FMI”) to produce certain documents in discovery.

It being apparent that the instant matter represents yet another example in an increasing array of satellite litigation over the discoverability of large volumes of documents compiled by an insurer during its relationship with insured, we issue this standing order. Generally, the parties will have joined battle over the issue of coverage, and the insurer will claim that materials sought by the insured are protected from discovery by the attorney-client privilege or work product doctrine or both. More often than not, in our experience, the insurer will not have made a colorable attempt to meet its burden of establishing the applicability of the privilege it asserts to each of the documents it hopes to withhold from discovery. As a result of encountering this scenario on more than one [86]*86occasion, this court has developed this standing order regarding such disputes. A brief review of the parties’ submissions in this ease suggest it is appropriate to issue the order in this matter, as plaintiffs Allen-dale and FMI assert that the work product doctrine protects the documents at issue from discovery and have not so much as submitted a privilege log to support their assertions. Owing to this dearth of information, and the chance that plaintiffs might also assert the attorney-client privilege as to the materials at issue, we will address the elements of the privilege and the work product doctrine.

I. DISCUSSION

A. Attorney-Client Privilege

The party seeking to invoke the protection of a privilege, or discovery opponent, has the burden of establishing all of its elements. U.S. v. White, 950 F.2d 426, 430 (7th Cir.1991), citing United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983). In the case of the attorney-client privilege, the Seventh Circuit has adopted the elements as outlined by Wigmore:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

Id. A claim of privilege cannot be a blanket claim, but must be made and established on a document-by-document basis. Id. The scope of the privilege is narrow, because it is a “derogation of the search for truth.” Id. (citing In re Walsh, 623 F.2d 489, 493 (7th Cir.1980)). We stress that each of these elements must be established as to each document, as the mere existence of an attorney-client relationship is not sufficient to cloak all communications with the privilege. Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 28 (N.D.Ill.1980).

B. Work Product Doctrine

The work product doctrine is distinct from, and broader than, the attorney-client privilege. In re Air Crash Disaster at Sioux City, Iowa, 133 F.R.D. 515, 519 (N.D.Ill.1990), citing United States v. Nobles, 422 U.S. 225, 238 n. 11, 95 S.Ct. 2160, 2170 n. 11, 45 L.Ed.2d 141 (1975). The work product privilege developed to protect the work of an attorney from encroachment by opposing counsel. Binks Mfg. Co. v. Nat. Presto Industries Inc., 709 F.2d 1109, 1118 (7th Cir.1983). It consists of a multi-level protection whereby that information most closely related to an attorney’s litigation strategy is absolutely immune from discovery, while that information with a more tenuous relationship to litigation strategy might be available in circumstances evincing a substantial need or undue hardship on the part of the discovery proponent. Fed.R.Civ.P. 26(b)(3).1

The threshold determination in a case involving a claim of work product privilege is whether the material sought to be protected from discovery was prepared in anticipation of litigation. Binks, 709 F.2d at 1118. The determination of whether materials are prepared in anticipation of litigation, however, while central to the work product doctrine,. eludes precision. This is especially the case in the insurance context, where insurers routinely perform investigations and accumulate files even [87]*87when no litigation ensues. In this court’s experience with such cases, the work product doctrine becomes an all-encompassing shroud of secrecy that is at once at odds with the federal rules’ liberal discovery policy and the protection of attorney’s thought processes and strategies the doctrine was designed to be. Rather than using the doctrine to immunize these strategies and opinions from discovery, some discovery opponents seem to use the doctrine to relieve themselves of the burden of producing factual information accumulated in what appears to be routine investigations. Accordingly, we have found it helpful to express the elements of the work product doctrine into the concepts of “causation” and “reasonable anticipation” of litigation. See Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 659 (S.D.Ind.1991).

As already noted, “work product” is defined as those materials produced because of the anticipation of litigation. Fed.R.Civ.P. 26(b)(3); Binks, 709 F.2d at 1119 (emphasis added). Thus, there is a “causation” element insofar as production of the material must be caused by the anticipation of litigation. If materials are produced in the ordinary and regular course of a discovery opponent’s business, and not to prepare for litigation, they are outside the scope of the work product doctrine. Fed.R.Civ.P. 26(b)(3) (advisory committee notes). Accordingly, even if litigation is imminent, there is no work product immunity for documents prepared in the ordinary course of business rather than for litigation purposes. Binks, 709 F.2d at 1118; See also Wright & Miller, Federal Practice and Procedure, Civil, § 2024. (“Prudent parties anticipate litigation, and begin preparation prior to the time the suit is formally commenced. Thus, the test should be whether, in light of the nature of the document and the factual situation ... the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”) That is to say, the mere fact that a discovery opponent anticipates litigation does not qualify an “in-house” document as work product. Janicker v. George Washington University, 94 F.R.D.

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145 F.R.D. 84, 1992 U.S. Dist. LEXIS 17498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allendate-mutual-insurance-v-bull-data-sys-inc-ilnd-1992.