Dunn v. State Farm Fire & Casualty Co.

122 F.R.D. 507, 1988 U.S. Dist. LEXIS 12750, 1988 WL 120823
CourtDistrict Court, N.D. Mississippi
DecidedSeptember 26, 1988
DocketNo. WC87-39-NB-D
StatusPublished
Cited by10 cases

This text of 122 F.R.D. 507 (Dunn v. State Farm Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. State Farm Fire & Casualty Co., 122 F.R.D. 507, 1988 U.S. Dist. LEXIS 12750, 1988 WL 120823 (N.D. Miss. 1988).

Opinion

MEMORANDUM OPINION

BIGGERS, District Judge.

The court has before it State Farm’s motion to review the Magistrate’s order to compel production of documents State Farm and its attorneys prepared. Having reviewed the magistrate’s opinion, examined the documents in question, and read the parties’ submissions, the court is in a position to rule on the merits.

I.

On February 3, 1986, Melvin and Mollie Dunn’s house burned and the following day Mr. Dunn filed a claim for the loss with State Farm. On February 5, 1986, State Farm sent an adjuster to investigate the cause of the fire. After the adjuster found what he considered suspicious circumstances, he asked an arson specialist to inspect the house. On February 10, 1986, the adjuster learned from the New Albany police department that Melvin Dunn had signed a written statement in which Dunn admitted he intentionally burned his house. Within a week, State Farm retained attorneys to advise it concerning the company’s legal obligations to the Dunns and State Farm continually communicated with its attorneys while it adjusted the Dunn’s claim. State Farm denied the claim in August, 1986 and Mollie Dunn filed this suit alleging State Farm denied her insurance claim in bad faith.

During the course of discovery, Mollie Dunn asked State Farm to produce the documents State Farm and its attorneys prepared before Mollie Dunn filed suit. State Farm moved to quash Mollie Dunn’s subpoena asserting that some of the documents were privileged or were attorneys’ work product. Mollie Dunn argued that she is entitled to all factual information contained in the documents. The magistrate found that several of these documents were prepared while State Farm’s attorneys were advising State Farm on the Dunn’s claim. The magistrate reasoned that the attorneys were acting as investigators in the normal course of business of an insurer, and, therefore, the documents were not the result of an attorney’s work product in the sense of that term making work product immune from discovery. After reaching this conclusion, the magistrate struck portions of the documents which contained legal advice and opinions and or[509]*509dered State Farm to produce most of the documents. State Farm appealed the magistrate’s ruling and the issue before the court concerns the breadth of the attorney-client privilege and the work product doctrine.

II.

The attorney-client privilege protects communications made to an attorney by his client. The privilege exists to ensure a client fully informs his attorney and thus enables the attorney to provide sound legal advice. Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 683, 66 L.Ed.2d 584, 591 (1981). “Whenever legal advice of any kind is sought from a professional legal advisor, the communications relevant to that purpose made in confidence by the client are, at the instance of the client, permanently protected.” Wonneman v. Stratford Securities Co., 23 F.R.D. 281, 285 (S.D.N.Y.1959) (emphasis added) (quoted in Diversified Industries, Inc. v. Merideth, 572 F.2d 596, 602 (8th Cir.1977)). “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney____” Upjohn Co. v. United States, 449 U.S. at 395, 101 S.Ct. at 685, 66 L.Ed.2d at 595. Accordingly, the privilege only protects the manner, extent, and the occasion of the factual disclosure. Thus:

The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact merely because he incorporated a statement into his communication to his attorney.

Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (E.D.Pa.1962) (quoted in Upjohn v. United States, supra).

“[Recognition that the privilege is essential to the lawyer’s role creates tension between the privilege and discovery which requires disclosure of relevant facts within the attorney’s knowledge.” In re LTV Securities Litigation, 89 F.R.D. 595, 600 (N.D.Texas 1981). In order to help relieve this tension, the attorney-client privilege “is construed no more broadly than is necessary to effectuate its purpose.” Supra.

Clients are entitled to expect attorneys to hold their communications in confidence even though the client asks his attorney to perform related, but not strictly professional, tasks. Thus, an attorney does not divorce himself from his profession by performing tasks other than giving legal advice and the client does not waive the privilege by asking the attorney to perform related work. In In re LTV Securities Litigation, 89 F.R.D. 595 (N.D.Texas 1981), the government sought documents which an attorney prepared while performing an investigative function. The government argued that the attorney prepared the documents in the normal course of business and concluded that the documents were not privileged. The court disagreed:

Information gathered in such a manner as to be privileged does not become discoverable solely because management makes business use of the information____ [The attorney] ... conducted [his] investigation with the purpose of using the findings as a foundation from which ‘to evaluate and draw conclusions as to the propriety of past actions and to make recommendations for possible future courses of action.’ See Diversified Industries, Inc. v. Merideth, 572 F.2d 596, 610 (8th Cir.1978). Moreover, while in-house accountants or lay investigators could have been employed to investigate the events in question, neither would have brought to bear the same training, skills and background necessary to make the professional independent analysis and legal recommendations sought by ... [the client].

Id. at 601 (cite omitted).

An attorney can play an important role in adjusting an insurance claim, especially since an insurer can be assessed punitive damages for ignoring its legal obligations to the insured. See Bankers Life and Casualty Co. v. Lloyd Crenshaw, 483 So.2d 254 (Miss.1986), aff'd, 486 U.S. -, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988). State Farm retained attorneys to ascertain its legal obligations to the Dunns; conse[510]*510quently, any communication between State Farm and its attorneys is privileged. State Farm did not waive the attorney-client privilege by assigning its attorneys investigative tasks and the privilege includes more than legal advice and opinions. The court has thoroughly examined the documents State Farm supplied Mollie Dunn and finds that State Farm has divulged the factual information discussed in the correspondence. Mollie Dunn is not entitled to discover the extent and occasion of these communications.

III.

Like the attorney-client privilege, the work product doctrine, codified in Fed. R.Civ.P. 26(b)(3), does not protect disclosure of facts to opposing counsel.

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122 F.R.D. 507, 1988 U.S. Dist. LEXIS 12750, 1988 WL 120823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-state-farm-fire-casualty-co-msnd-1988.