Pollock v. Nationwide Mut. Ins. Co.
| Decision Date | 15 July 2021 |
| Docket Number | Case No. 1:19-cv-00304-CWD |
| Citation | 549 F.Supp.3d 1202 |
| Parties | Leon POLLOCK, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio Corporation, licensed in Idaho, Defendant. |
| Court | U.S. District Court — District of Idaho |
Douglas W. Crandall, Crandall Law Office, Eagle, ID, James A. Hertz, Pro Hac Vice, Kenneth R. Friedman, Pro Hac Vice, Friedman/Rubin, PLLP, Bremerton, WA, for Plaintiff.
James S. Thomson, II, Mark J. Orler, Powers Farley, PC, Boise, ID, for Defendant.
Before the Court is Pollock's Second Motion to Compel Discovery. (Dkt. 39.) The motion is fully briefed and at issue. The parties presented argument on July 8, 2021. Having carefully considered the briefing, arguments, and entire record, the Court will grant in part, deny in part, and reserve ruling in part the motion for the reasons that follow.
This action involves a claim of insurance bad faith brought by Leon Pollock against Nationwide Mutual Insurance Company (Nationwide). (Dkt. 1 at 1.) The claim arises from a motor vehicle accident that occurred on June 25, 2014. Pollock was seriously injured when an uninsured motorist failed to stop and struck the vehicle Pollock was driving.
Pollock alleges that, despite submitting an adequate proof of loss for payment of the uninsured motorist policy limit of one million dollars, Nationwide failed to make a reasonable investigation or evaluation of his claim and refused to make a reasonable settlement offer. (Dkt. 1-1 at ¶ 26); (Dkt. 1-1, Ex. A at 65-67, 81.) On March 8, 2016, Pollock filed suit against Nationwide in state court, asserting breach of the insurance contract. After the state case was filed, Nationwide paid Pollock $25,000.00 in undisputed lost wages and $100,000.00 in undisputed damages. (Dkt 1-5, Answer at ¶ 10.) However, Nationwide disputed the total amount of damages Pollock was entitled to recover and agreed to submit the determination of the amount of damages to binding arbitration. (Dkt. 15-6, Ex. E at 3.)
On June 19, 2017, the arbitrator issued a decision finding Nationwide liable for compensatory damages, prejudgment interest, and attorney fees and costs. (Dkt. 15-3, Ex. B.) The arbitrator awarded Pollock a net amount of damages of $1,399,299.80, calculated after deducting offsets for other payments previously received by Pollock from Nationwide and workers compensation.
On June 29, 2017, Pollock filed an application for confirmation of the arbitration award and a petition for prejudgment interest. (Dkt. 15-3, Ex. B); (Dkt. 15-4, Ex. C); Dkt. 15-5, Ex. D.) On July 11, 2017, Nationwide filed a motion to vacate or modify the arbitration award and an objection to Pollock's petition for prejudgment interest. (Dkt 15-6, Ex. E.) The state court modified and confirmed the arbitration award on October 5, 2017, reducing the award to the policy limit, deducting the offsets, and awarding Pollock prejudgment interest accruing from the date of the arbitration decision. (Dkt. 15-6, Ex. E.) Judgment was entered against Nationwide in the amount of $875,000.00, on November 20, 2017. (Dkt. 15-7, Ex. F.) Satisfaction of judgment was filed on January 3, 2018. (Dkt. 15-8, Ex. G.) However, Pollock alleges in this lawsuit that Nationwide did not pay the attorney fees awarded in the arbitration until January 8, 2018. (Dkt. 1 at ¶ 39.)
On January 8, 2019, Pollock filed the present case against Nationwide asserting claims involving breach of the insurance contract and breach of the implied covenant of good faith and fair dealing relating to the handling of the insurance claim. Nationwide filed a motion for judgment on the pleadings. (Dkt. 15.) The Court granted in part and denied in part Nationwide's motion, dismissing all claims except for the bad faith tort claim. (Dkt. 22.) However, the Court limited the surviving bad faith claim to Nationwide's conduct following the arbitration decision on June 19, 2017. (Dkt. 22.)
On October 20, 2020, Pollock filed his first motion to compel responses to requests for production of documents. (Dkt. 30.) The parties disputed the scope of relevant discovery in light of the Court's ruling limiting Pollock's bad faith claim to conduct occurring after the arbitration decision was issued. (Dkt. 28, 30-32.) The Court granted the motion to compel, and ordered Nationwide to respond to Pollock's requests for production numbered 4, 6, 9, 10, and 11. (Dkt. 33.)
Nationwide served responses to the requests for production on January 11 and 22, 2021. (Dkt. 39-5.) Some of the materials provided by Nationwide were produced in their entirety. Other materials were either withheld or produced with redactions based on Nationwide's assertion that they contain privileged attorney-client communications and work product. Nationwide provided a privilege log dated March 12, 2021, of the materials it claims are undiscoverable. Consequently, Pollock filed a second motion to compel seeking production of the withheld and the redacted documents under Federal Rules of Civil Procedure 34 and 37. The second motion is presently before the Court. (Dkt. 39.)
A party may move for an order compelling discovery pursuant to Federal Rule of Civil Procedure 37(a) when an opposing party fails to respond or fails to adequately respond to requests for production permissible under Federal Rule of Civil Procedure 34. Fed. R. Civ. P. 37(a)(3)(iv). "If a party ... fails to obey an order to provide or permit discovery, ... the Court where the action is pending may issue further just orders." Fed. R. Civ. P. 37(b)(2). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).
If a party withholds discovery information on the basis of privilege, "the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5). The party wishing to withhold documents as privileged has the burden of establishing the privileged character of the communications. Kirk v. Ford Motor Co. , 141 Idaho 697, 116 P.3d 27, 34 (2005). Boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege. Burlington Northern & Santa Fe Ry. Co. v. U.S. District Court , 408 F.3d 1142, 1149 (9th Cir. 2005).
On this motion, Pollock seeks to compel production of the materials contained in Nationwide's privilege log in their entirety and without redaction. Alternatively, Pollock requests that the Court conduct an in camera review of the undisclosed materials.
Nationwide opposes the motion, arguing the withheld documents and the redacted portions of documents all contain privileged material or work product as reflected in the privilege log. Further, Nationwide asserts that the Court's Order did not require production of privileged documents.
(Dkt. 40.) Nationwide has submitted unredacted copies of the materials in question to the Court for an in camera review.
To most completely address the issues raised on this motion, the Court has conducted a single, multi-purpose in camera review of the materials provided by Nationwide. See e.g. Taladay v. Metropolitan Grp. Prop. and Casualty Insur. Co. , 2015 WL 12030116, at *6-7 (W.D. Wash. Dec. 18, 2015) (). The Court's analysis and conclusions articulated below incorporate the Court's findings from the in camera review as applicable.
The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney's advice in response to such-disclosures. See United States v. Chen , 99 F.3d 1495 (9th Cir. 1996). The attorney-client privilege in a diversity case is governed by state law. See Fed. R. Evid. 501.
Under Idaho law, "[f]or the attorney-client privilege to apply, the communication must be (1) confidential within the meaning of the rule, (2) made between persons described in the rule, and (3) for the purpose of facilitating the rendition of professional legal services to the client." Truckstop.Net, L.L.C. v. Sprint Communications Co., L.P. , 2007 WL 2480001, at *3 (D. Idaho Aug. 29, 2007) ; see also Idaho R. Evid. 502(b) (). "A communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Idaho R. Evid. 502(a)(5).
The privilege protects only 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. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). That a person is a lawyer does not make all communication with that person privileged. Id.
In their briefs and during the hearing, both parties rely on the approach developed in Washington state caselaw for evaluating discovery of attorney-client privileged materials in the context of a bad faith insurance claim. (Dkt. 39, 40, 41.) "Under Washington law, it is presumed that when an insured...
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