Colony Insurance v. Danly, Inc.

270 F.R.D. 36
CourtDistrict Court, D. Maine
DecidedOctober 4, 2010
DocketCivil Nos. 10-308-P-H, 09-108-P-H
StatusPublished

This text of 270 F.R.D. 36 (Colony Insurance v. Danly, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colony Insurance v. Danly, Inc., 270 F.R.D. 36 (D. Me. 2010).

Opinion

MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE

JOHN H. RICH III, United States Magistrate Judge.

This order is issued in follow-up to teleconferences that I held with counsel on September 13 and 21, 2010, bearing on the matter of files of the Danly parties in possession of their counsel, Friedman Gaythwaite Wolf & Leavitt (“FGWL”), which FGWL maintains that it need not produce in response to scheduling orders issued in both the Colony and Yazdani cases. See Docket Nos. 16, 35, 37, Colony; Docket Nos. 137, 144, 150, Yazdani.

At the conclusion of the September 21 teleconference with counsel, I ordered FGWL to provide to the court for in camera review, no later than noon on Thursday, September 23, 2010, copies of all specific documents (the “Itemized Documents”) listed on a September 17, 2010, log detailing documents that FGWL had declined to produce (the “September 17 Log”). See Docket No. 37, Colony, at 6; Docket No. 150, Yazdani, at 6. In addition to the Itemized Documents, all of which are internal emails between or among FGWL attorneys and staff, the September 17 Log lists two general categories of documents that FGWL has declined to produce: (i) time and billing records and (ii) emails and notes and memoranda relating to other cases and incorrectly filed in the Yazdani file (together with the Itemized Documents, the “Withheld Documents”). I reserved ruling, pending my in camera review, on the questions of whether to order an electronic search of FGWL files and whether to order the turnover of any of the Withheld Documents. See id. at 7.

On September 23, 2010, FGWL provided to me, in camera, copies of the Itemized Documents. After careful review of those documents, and with the benefit of argument of counsel during both the September 13 and the September 21 teleconferences, for the reasons that follow, I now deny the request of the Yazdani parties to order an electronic search of FGWL files, grant in part and deny in part the requests of Colony and the Yazdani parties for access to the Withheld Documents, order FGWL to produce the documents specified below on or before October 6, 2010, and direct that the Clerk’s Office schedule a teleconference with counsel as soon as possible thereafter to discuss the resetting of the deadline(s) for the filing of dispositive motions in the Colony ease, said deadline(s) having been suspended pending my adjudication of the instant discovery dispute.

I. Request for Access to the Withheld Documents

A. The Parties’ Arguments

The parties’ dispute centers on whether FGWL properly withheld certain documents [38]*38in the face of directives in scheduling orders issued in both the Colony and Yazdani cases that the Danly parties “provide to [Colony] complete copies of their counsels’ files, excepting only items claimed to be privileged, if any, on or before August 16, 2010.” See Docket No. 16, Colony; Docket No. 137, Yazdani.1

FGWL took the position that the word “files” should be construed in accordance with Ethics Opinion # 187 of the Maine Board of Overseers of the Bar, which provides guidance concerning the contents of a client’s file, in particular the contents that must be turned over to the client upon his/ her request. Opinion # 187 delineates as an overarching principle, in discerning which documents are part of a client’s file, whether “information is valuable to the client in relation to the accomplishment of the services for which the attorney was retained[.]” Id. In making that determination, “the lawyer must assess the point in time when the client’s request for the file is made and any information that the lawyer has regarding the reason for the request.” Id. (footnote omitted). “Thus, for example, an attorney’s notes regarding potential witnesses to be interviewed in any litigated matter will be useful information before the trial, but may not be useful after the trial has concluded and the witness’s testimony has been reduced to a transcript.” Id.

Opinion # 187 lists the following as documents that ordinarily need not be provided to the client: (i) time sheets and billing records, (ii) internal administrative documents such as conflict checking forms and case assignment or staffing memoranda, (iii) internal memoranda that set out a lawyer’s general impressions of the client and the matter, the options for staffing or handling a case, and certain internal firm business information, and (iv) drafts of documents with certain exceptions. Me. Bd. of Overseers of Bar, Op. 187 (2004) (“Opinion # 187”). The following, by contrast, ordinarily should be provided to the client: (i) all pleadings, (ii) all correspondence, (iii) research memoranda, (iv) notes and memoranda concerning information obtained from client interviews, witness interviews, facts of the case, and communications with other parties on the matter, and (v) certain drafts of documents (e.g., where prior drafts advanced legal arguments that might still be used in the matter or where important to show the history of negotiations or otherwise pertinent to the future understanding of the outcome of the matter). Id.

FGWL takes the position that it has produced all documents comprising the Danly parties’ files as that term is defined in Opinion # 187, including documents not ordinarily considered to be part of a client’s files, such as internal attorney emails, that it has deemed valuable to the Danly parties. See Docket No. 35, Colony, at 4; Docket No. 144, Yazdani, at 4.

Colony and the Yazdani parties argue that Opinion # 187 has no bearing on the instant dispute. See id.; see also Docket No. 37, Colony, at 4; Docket No. 150, Yazdani, at 4. They state that the Danly parties agreed, as is reflected in the relevant scheduling orders, to turn over all save privileged documents from their files. See id. They reason that, no privilege having been claimed, every one of the Withheld Documents must be turned over. See id. James Bowie, the Danly parties’ new counsel, agrees that this was in fact the Danly parties’ agreement. See Docket No. 37, Colony, at 6; Docket No. 150, Yazdani, at 6. Mr. Bowie in effect confirms that the Danly parties themselves want the Withheld Documents produced. See id.2

Alternatively, Colony and the Yazdani parties contend that, to the extent that Opinion # 187 provides any guidance, (i) the produe[39]*39tion of some internal FGWL emails has effectuated a waiver with respect to similar Withheld Documents and (ii) even under Opinion # 187, the Withheld Documents should be ordered produced to the extent relevant to issues now of importance in the Colony and Yazdani cases, namely the question of the reasonableness of the Yazdani settlement and the asserted absence of collusion between the parties in the Yazdani case. See Docket No. 37, Colony, at 4; Docket No. 150, Yazdani, at 4. The Yazdani parties take the position that at least two categories of Withheld Documents, those pertaining to FGWL lawyers’ impressions of the case, clients, and opposing counsel and those pertaining to billing, are relevant to those issues. See id. at 4-5.

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Bluebook (online)
270 F.R.D. 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colony-insurance-v-danly-inc-med-2010.