Kartman v. State Farm Mutual Automobile Insurance

247 F.R.D. 561, 2007 U.S. Dist. LEXIS 94699, 2007 WL 4561607
CourtDistrict Court, S.D. Indiana
DecidedDecember 21, 2007
DocketNo. 1:07-cv-0474-JDT-TAB
StatusPublished
Cited by3 cases

This text of 247 F.R.D. 561 (Kartman v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kartman v. State Farm Mutual Automobile Insurance, 247 F.R.D. 561, 2007 U.S. Dist. LEXIS 94699, 2007 WL 4561607 (S.D. Ind. 2007).

Opinion

ORDER ON DEFENDANT’S MOTION TO COMPEL

TIM A. BAKER, United States Magistrate Judge.

I. Introduction.

Prior to filing this lawsuit, Plaintiffs’ counsel undertook a comprehensive factual investigation relevant to the claims being asserted. Plaintiffs’ investigation garnered numerous documents from publicly available sources, including from Defendant State Farm’s own web sites. After Plaintiffs filed suit, State Farm served interrogatories on Plaintiffs requesting the documents obtained by Plaintiffs’ counsel’s investigation. Although Plaintiffs plan to use these documents “for the purpose of cross-examining and impeaching State Farm representatives,” Plaintiffs objected to producing the documents in discovery on the basis of the work product doctrine. [Docket No. 44 at 2-3.] This discovery dispute prompted State Farm to file a motion to compel. [Docket No. 42.] A secondary issue raised by the motion is the timing of Plaintiffs’ response to State Farm’s contention interrogatories. As set forth more fully below, the Court grants State Farm’s motion to compel.

II. Discussion.

A. Documents obtained by Plaintiffs’ counsel.

“The work product doctrine protects from disclosure documents and tangible things otherwise discoverable that were prepared in anticipation of litigation.” Chalimoniuk v. Interstate Brands Corp., No. IP01-0788-C-T/K, 2002 WL 1048826 (S.D.Ind.2002); see also Hickman v. Taylor, [563]*563329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Fed.R.Civ.P. 26(b)(3); Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir.1996) (explaining that to claim protection of the doctrine, a party must demonstrate that the materials in question would otherwise be discoverable and were prepared in anticipation of litigation); Caremark, Inc., v. Affiliated, Computer Servs., Inc., 195 F.R.D. 610, 614 (N.D.Ill.2000) (“The threshold determination is whether the documents sought to be protected were prepared in anticipation of litigation or for trial.”). The burden is on the party asserting the doctrine to establish these elements. Bartlett v. State Farm Mut. Auto. Ins. Co., 206 F.R.D. 623, 628 (S.D.Ind.2002).

Plaintiffs assert that disclosing the disputed documents “would necessarily reveal counsel’s mental impressions and litigation strategy.” [Docket No. 44 at 3.] In contrast, State Farm contends that “Plaintiffs intend to withhold clearly responsive documents from State Farm based upon a temporary invocation of work product protection that Plaintiffs will waive at tactically opportune times.” [Docket No. 43 at 4],

The case at hand is similar to Bartley v. Isuzu Motors Ltd., 158 F.R.D. 165, 167 (D.Colo.1994), in which the defendant in a products liability design defects ease sought to compel the plaintiff to produce various documents obtained from a “litigation clearinghouse” operated by the American Trial Lawyers Association. In granting the motion to compel in part, the court stated:

There appears to be no dispute that Plaintiffs counsel has secured various documents that were generated in other cases involving these Defendants. The issues in other cases may well be the same as those detailed in the complaint in this case. Defendants want to know what documents have been secured by Plaintiff and his counsel, and to have an opportunity to review them. Plaintiff has provided no privilege log or other list that would even indicate what documents are possessed that have not been made available for inspection.
In order for documents to qualify as exempt from discovery under the work product doctrine, the material must be documents or other tangible things, must be prepared in anticipation of litigation, and must be prepared by or for a party or his counsel. Fed. R. Civ. P. 26(b)(3). In this case, there are documents or other tangible items. The documents were secured from other sources, such as ATLA, and were not prepared in anticipation of this particular litigation. The documents were not prepared by or for Plaintiff or his counsel in this litigation.
This Court agrees with Defendants that documents obtained from a litigation group, such as ATLA, are not subject to the work product doctrine.

Id. at 167-68; see also Miller v. Ford Motor Co., 184 F.R.D. 581, 583 (S.D.W.Va.1999) (granting motion to compel and finding work product privilege did not apply to documents plaintiffs counsel obtained from trial lawyers’ association concerning alleged vehicle defect because the documents were not prepared by or for the plaintiff or her representative in anticipation of this litigation).

As in Bartley, the Plaintiffs in the case at bar have secured various documents from various sources that were not prepared in anticipation of this particular litigation. Like the defendant in Bartley, State Farm wants to know what documents Plaintiffs have secured, and seeks an opportunity to review these documents. Finally, both the Bartley plaintiffs and the Plaintiffs at bar have provided no privilege log or other list that would indicate what documents they possess that have not been made available for inspection. These similarities, as well as Bartley’s reasoned outcome, support a similar result here.1

Other factually similar cases have reached the same result. For example, in EEOC v. Jewel Food Stores, 231 F.R.D. 343, 347 [564]*564(N.D.I11.2005), the court rejected the argument that the work product doctrine shielded from discovery the identities of persons the defendant’s counsel interviewed while investigating harassment allegations. In rejecting this argument, the court noted there is a “substantial body of case law” holding that the work product doctrine does not protect from production documents that attorneys obtain from third parties during their investigation in connection with a lawsuit. Id. The Jewel court then stated, “The reasoning of these cases is that the mere assembly of documents, without more, does not indicate that the attorney placed special weight on those documents as opposed to documents that were not obtained, and does not reveal which of the assembled documents the attorney deems important.” Id.

Another factually similar case reaching the same result is In re Grand Jury Subpoenas, No. M 11-189, 2002 WL 31040322, 2002 U.S. Dist. Lexis 17079 (S.D.N.Y.2002). In that case, the government sought to compel compliance with two grand jury subpoenas issued to a law firm defending a corporation and its principal being investigated by the grand jury. The subpoenas sought Swiss bank records that the law firm had compiled as part of its representation of these clients. Asserting a work product privilege, the law firm claimed that disclosure would necessarily reveal elements of its legal strategy. Rejecting this argument, the court stated that the records “are the pre-existing records of third parties, created and maintained in the ordinary course of business by those third parties without any reference to litigation whatsoever.” Id. at *4, 2002 U.S. Dist. Lexis 17079 at *12.

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247 F.R.D. 561, 2007 U.S. Dist. LEXIS 94699, 2007 WL 4561607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kartman-v-state-farm-mutual-automobile-insurance-insd-2007.