Ledgin v. Cross

166 F.R.D. 496
CourtDistrict Court, E.D. Arkansas
DecidedMay 8, 1996
DocketCivil Action Nos. 95-2531-GTV, 95-2551-GTV
StatusPublished
Cited by5 cases

This text of 166 F.R.D. 496 (Ledgin v. Cross) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ledgin v. Cross, 166 F.R.D. 496 (E.D. Ark. 1996).

Opinion

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The Court has before it Plaintiffs’ Motion To Compel Under Rule 37(a) (doc. 48). Since its filing the parties have orally agreed that the motion may be deemed withdrawn, except as to its paragraph 10. That paragraph asks that defendants be ordered to produce two documents identified in their disclosures pursuant to Fed.R.Civ.P. 26. They consist of a Memorandum, dated September 2, 1993, and a chronological summary. Defendants resist discovery upon the grounds these two documents are work product. With the oral agreement of counsel for all parties, defendants have submitted the documents to the Court for in camera inspection. The Court has completed that inspection.

The Memorandum of September 2, 1993, consists of three pages. It identifies its addressees as Dick Krecker, John Walker, and Karon Harris and its writers as Steven Bledsoe, Nancy Creasy, and Rick Kastner. It shows copies to Mike Marchotte, Steve Coulter, Bob Murphy, and Don Weber. It discusses a “Coinsurance Issue” and “Contract Issue,” following a request by Mike Marcotte. The memorandum includes recommendations for action. Before its heading “Memorandum” are the words “CONFIDENTIAL-WORK PRODUCT.” The words “ATTORNEY WORK PRODUCT” also appear in the upper right part of the first page.

The chronology consists of four pages. It bears the title “COINSURANCE ISSUES REGULATORY PERSPECTIVE.” Its first two pages contain a chronology of events in Missouri from August 1989 through January 1995. Its third and fourth pages contain a similar chronology of events in Kansas from November 1992 through July 1994. All four pages bear the phrases “CONFIDENTIAL WORK PRODUCT” and “ATTORNEY WORK PRODUCT.” They identify neither the author nor for whom the documents were prepared.

Fed.R.Civ.P. 26(b)(3) codifies the rules set forth in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1946), relating to the protection of work product. Subject to certain exceptions (not here applicable), pertinent parts of the rule provide as follows:

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (in-[498]*498eluding the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing—

Fed.R.Civ.P. 26(b)(3) (emphasis added).

Some additional principles relate to the question of work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work product doctrine. Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir.), cert. denied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987); Fann v. Giant Food, Inc., 115 F.R.D. 593, 596 (D.D.C.1987); 8 Charles A. Wright et al., Federal Practice & Procedure § 2024 (1994). The inchoate possibility, or even likely chance of litigation, does not give rise to work product. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 (8th Cir.1977); Mission Nat’l Ins. Co. v. Lilly, 112 F.R.D. 160, 163 (D.Minn.1986); Stauffer Chem. Co. v. Monsanto Co., 623 F.Supp. 148, 152 (E.D.Mo.1985).

As the party resisting discovery, defendants bear the burden to show that withheld documents qualify as work product. Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984); Smith v. MCI Telecommunications Corp., 124 F.R.D. 665, 687 (D.Kan.1989). Fed.R.Civ.P. 26(b)(5), moreover, states what a party must do to uphold an objection of work product against discovery:

When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

In opposing the motion, defendants suggest there is “no doubt” that the Memorandum of September 2,1993, was created in anticipation of litigation and that the immunity of work product “obviously applies.” To support this contention, they note the document was prepared by three persons: Steven Bledsoe, Associate General Counsel for defendant Blue Cross and Blue Shield of Kansas City; Nancy Creasy, its Director, Internal Audit; and Rick Kastner, its Director, Contract Management and Administration. Because Mr. Bledsoe is the author first listed in the memorandum and Mike Marchotte, General Counsel, requested the information, defendants argue it was consequently intended for litigation purposes. In further support for their argument they point out that the Memorandum itself refers to the existence of litigation involving other Blue Cross and Blue Shield companies in other states. Finally, defendants note that the document was marked “CONFIDENTIAL — WORK PRODUCT" when it was prepared, supposedly demonstrating its preparation was in anticipation of litigation.

The document itself contains no suggestion that defendants in this case were anticipating litigation. It precedes the filing of this action by over two years. At the conclusion of its discussion of the “Coinsurance Issue” the Memorandum notes that litigation is pending as to three other Blue Cross and Blue Shield companies in states other than Missouri and Kansas. Nothing in the text, however, suggests that the Memorandum was prepared in anticipation of litigation or for trial of any of those cases. Nor does it suggest that defendants here were anticipating similar litigation; notwithstanding the identification of six consumer complaints in Missouri and two in Kansas.

Instead of contemplating litigation, the Memorandum addresses the possibilities of action which defendant(s) might take to avoid problems and complaints in the future. It contemplates possible administrative procedures with the Kansas Commissioner of Insurance, business negotiations with contractors, and changes in the language of insurance contracts. These matters all relate to the ongoing operation of the business of the insurers. Understandably defendant would engage its in-house legal counsel in these matters. For its own good will in the market place of insurance and for its own protection against future complaints, one would reasonably expect defendants to assert legally sound positions in handling mat[499]

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166 F.R.D. 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ledgin-v-cross-ared-1996.