Great Plains Mutual Insurance v. Mutual Reinsurance Bureau

150 F.R.D. 193, 27 Fed. R. Serv. 3d 1508, 1993 U.S. Dist. LEXIS 10936, 1993 WL 294462
CourtDistrict Court, D. Kansas
DecidedJuly 26, 1993
DocketNo. 89-1226-SAC
StatusPublished
Cited by40 cases

This text of 150 F.R.D. 193 (Great Plains Mutual Insurance v. Mutual Reinsurance Bureau) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great Plains Mutual Insurance v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 27 Fed. R. Serv. 3d 1508, 1993 U.S. Dist. LEXIS 10936, 1993 WL 294462 (D. Kan. 1993).

Opinion

MEMORANDUM AND ORDER

CROW, District Judge.

Great Plains Mutual Insurance Company, Inc. (Great Plains) brings this diversity of citizenship action against the defendant, Mutual Reinsurance Bureau (MRB). This dispute between an insurance company and its reinsurer essentially boils down to a factual dispute as to whether the damages caused by weather between August 17, 1987, and August 20, 1987, were caused by one or two [194]*194storms. Under the terms of the reinsurance agreement, a “one storm” theory favors Great Plains; a “two storm” theory favors MRB.1

This case comes before the court upon MRB’s motion to compel (Dk. 32). Great Plains has filed a response. (Dk. 36). MRB did not file a reply.

Having considered the briefs of the parties and the applicable law, the court is now prepared to rule.

Arguments of the Parties

On March 24, 1993, MRB served Great Plains with a request for production of documents which requested production of the minutes of Great Plains’ board of directors’ meetings. On April 23, 1993, in response to that request, Great Plains filed an objection to MRB’s request for production. Counsel for MRB has filed a certificate of compliance in accordance with D.Kan.Rule 210(j); the certificate sets forth the steps taken by counsel to resolve the issues in dispute.

MRB seeks an order pursuant to Fed. R.Civ.P. 37, compelling Great Plains to produce portions of the minutes of its board of directors’ meetings which are relevant to the case at bar, or, in the alternative, an order requiring Great Plains to submit those minutes to the court for in camera inspection to determine Great Plains’ claim of “trade secrets,” “attorney/client privilege” and “work product” doctrine.2

In regard to Great Plains’ claim that the information is protected by the attorney-client privilege, MRB argues that it is “horn-book” law that communications from an attorney who is acting in his capacity as a director and not as legal counsel are not protected by the privilege. MRB argues that communications it seeks constitute “business advice” and are not privileged. MRB states that Great Plains should not be permitted to “hide” behind its lawyer to make documents non-diseoverable. MRB also notes that the mere fact that a lawyer is present during the board of directors’ meetings does not make the information privileged.

Great Plains responds that MRB’s request for production of documents is “cumbersome, overly broad, vague, ambiguous, inconsistent with Federal Rules of Civil No. 34, and/or not reasonably calculated to lead to the discovery of admissible evidence.” Great Plains also claims the documents are privileged as they are “trade secrets,” or that they are protected by the “attorney-client privilege” and the “work product” doctrine.

Great Plains has submitted, for in camera inspection, the minutes of the Great Plains’ board of directors’ meetings which are relevant to this case. In addition, Great Plains has filed an affidavit of C.L. Christian, currently the president of Great Plains. During the relevant time at issue, Christian was the manager of Great Plains. In that affidavit, Christian avers that during the board of director’s meetings, certain issues pertaining to the August 17, 1987, though August 20, 1987, storm and related issues were discussed with Great Plains’ attorney [who also sat on the board of directors], and that those conversations concerned “specific legal instruction, legal opinions, legal strategy and/or legal advice in confidence to these directors regarding this situation and/or the issues in question and there were no other persons present other than directors or this affiant present when these discussion occurred and this information was not disseminated beyond those persons at those meetings and was kept secured and confidential.” Although its attorney sat upon its board of directors, Great Plains contends that the information specifically sought by MRB in this [195]*195case is protected by the attorney-client privilege.

Discovery Under the Federal Rules of Civil Procedure

Fed.R.Civ.P. 26(b) provides in pertinent part:

Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking diseovéry or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The “Notes of Advisory Committee Rules” concerning the 1946 Amendment to 26(b) state:

The amendments to subdivision (b) make clear the broad scope of examination and that it may cover not only evidence for use at trial but also inquiry into matters themselves inadmissible as evidence but which will lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case.

In Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978), the Supreme Court stated:

The key phrase in this definition—“relevant to the subject matter involved in the pending action”—has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451, 34 Ohio Ops 395 (1947). Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Id. at 500-501, 67 S.Ct. at 388. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits, (footnote omitted).

The Tenth Circuit has held that “the trial court [has] broad discretion as to the control of discovery, ... and rulings will not set aside short of an abuse of discretion.” Marsee v. U.S. Tobacco Co., 866 F.2d 319, 326 (10th Cir.1989) (quoting Shaklee Corp. v. Gunnell,

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Bluebook (online)
150 F.R.D. 193, 27 Fed. R. Serv. 3d 1508, 1993 U.S. Dist. LEXIS 10936, 1993 WL 294462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-plains-mutual-insurance-v-mutual-reinsurance-bureau-ksd-1993.