Coltec Industries, Inc. v. American Motorists Insurance

197 F.R.D. 368, 2000 U.S. Dist. LEXIS 19184
CourtDistrict Court, N.D. Illinois
DecidedNovember 30, 2000
DocketNos. 99 C 1087, 99C3192, 99C3929
StatusPublished
Cited by27 cases

This text of 197 F.R.D. 368 (Coltec Industries, Inc. v. American Motorists Insurance) 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
Coltec Industries, Inc. v. American Motorists Insurance, 197 F.R.D. 368, 2000 U.S. Dist. LEXIS 19184 (N.D. Ill. 2000).

Opinion

MEMORANDUM ORDER

BOBRICK, United States Magistrate Judge.

Before the court is the motion of plaintiff Coltec Industries, Inc. (“Coltec”) to compel production of documents from defendant Zurich Insurance Company (“Zurich”).

The instant case concerns Zurich’s coverage obligations under insurance policies it issued Coltec between thirty-five and forty-one years ago. The parties have struggled with the instant discovery dispute to a degree that would not seem possible. It would appear that, at last count, 47 documents are presently at issue which Zurich has claimed are protected from discovery under either the attorney-client privilege or work product doctrine or both. Originally, Coltec sought production of 59 documents, which it named in three separate lists of 42, 36, and 31 documents each. In the meantime, Zurich produced a privilege log listing 67 documents. When the parties briefed this matter, they apparently felt that 43 documents were at issue but, even then, their respective lists failed to match that number. We note that, when the parties to a discovery dispute cannot agree on how many documents are at issue, it does not bode well for resolution of the dispute. We also note that, in a similar vein, the parties disagree over the number of documents Zurich has already produced.

On November 1, 2000, this court issued an order mandating the parties arrive at a final resolution as to which documents are in dispute and, finally, Zurich and Coltec seem to agree on 47 documents. Unfortunately, Zurich has produced yet another version of its privilege log, in which it has amended a large number of descriptions of documents that both the court and Coltec have been working with for several months. Obviously, Coltec has not had an opportunity to respond to this new log. Zurich’s conduct is outside the scope of this court’s order and at this late date and, months after the parties’ dispute began, it is unacceptable. Accordingly, the court will not consider any amended descriptions in the privilege log.1

I. LEGAL STANDARDS

Discovery disputes such as’ this one-involving insurance documentation-are familiar to this court. As such, we begin by revisiting the law applicable to these recurring matters, as outlined in Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 145 F.R.D. 84 (N.D.Ill.1992).

The party seeking to invoke the protection of a privilege, or discovery opponent, has the burden of establishing all of its elements. In the case of the attorney-client privilege, the Seventh Circuit has adopted the elements as outlined by Wig-more:
(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, [371]*371(6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

A claim of privilege cannot be a blanket claim, but must be made and established on a document-by-doeument basis. The scope of the privilege is narrow, because it is a “derogation of the search for truth.” 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.

The work product doctrine is distinct from, and broader than, the attorney-client privilege. The work product privilege developed to protect the work of an attorney from encroachment by opposing counsel. 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.

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. 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 when no litigation ensues. In this court’s experience with such eases, the work product doctrine becomes an all-eneompassing 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.

As already noted, “work product” is defined as those materials produced because of the anticipation of litigation. 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. 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. “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.

As for “anticipation of litigation,” courts have made clear that, because litigation can be anticipated at the time almost any incident occurs, a substantial and significant threat of litigation is required before a discovery opponent’s anticipation will be considered a reasonable and justifiable motivation for production of a document. Although a precise definition of this level of “threat”' is elusive, it is perhaps best described as requiring a showing of “objective facts establishing an identifiable resolve to litigate.” The fact that litigation actually ensues or that a party has retained an attorney, initiated investigations, or engaged in negotiations over a claim, is insufficient to dispositively establish anticipation of litigation.

Bearing in mind all these factors, it can be summarized that, in order to establish work production protection for a docu[372]*372merit, a discovery opponent must show that “the primary motivating purpose behind the creation of a document ... must be to aid in possible future litigation,” under circumstance where the discovery opponent can show “objective facts establishing an identifiable resolve to litigate.” Only by strictly construing the elements of work product, can the doctrine’s original intent be best served.

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Bluebook (online)
197 F.R.D. 368, 2000 U.S. Dist. LEXIS 19184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coltec-industries-inc-v-american-motorists-insurance-ilnd-2000.