Robinson v. Allstate Ins. Co.
| Decision Date | 26 July 2011 |
| Docket Number | Case No. 09-10341 |
| Parties | LANITA ROBINSON, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Victoria A. Roberts
This matter is before the Court on Plaintiff's Objections to the Magistrate Judge's Opinion and Order Granting Defendant's Motion to Compel the Deposition of Attorney Susan Jesson Thomas. (Doc. 76). All pretrial matters were referred to Magistrate Judge Paul Komives under 28 U.S.C. § 636(b)(1)(A). On October 15, 2010, the Magistrate held a hearing on Defendant's Motion to Compel (Doc. 62) and directed Defendant to depose attorney Susan Thomas.
Plaintiff objects to the Order as contrary to law because (1) it breaches the attorney-client privilege without citing any extraordinary circumstances; (2) the No-Fault Automobile Insurance Act does not authorize discovery of the information sought by Defendant; (3) it ignores the majority rule discouraging the practice of deposing counsel; and (4) it ignores the principle of attorney-work product.
For the reasons stated, the Court REJECTS all of Plaintiff's objections and ADOPTS the Magistrate's Order.
In 1997, Vanden Robinson was involved in an automobile accident that left him legally incapacitated. Plaintiff Lanita Robinson, Vanden's guardian, alleges a controversy exists as to the benefits Defendant Allstate Insurance Co. is responsible for paying. Plaintiff brought this action seeking reimbursement for, inter alia, attendant care benefits under the Michigan No-Fault Insurance Act, Mich. Comp. Laws § 500.3102, et. seq.
As guardian, Plaintiff either personally cares for Vanden or arranges other care for him. To recover attendant care benefits, the insured must provide the insurer "reasonable proof of the fact and of the amount of loss sustained." Mich. Comp. Laws § 500.3142. Plaintiff keeps written calendars and notebooks to record the number of attendant care hours she and others provide Vanden. Plaintiff sends her attorneys the written calendars, and they create typed calendars that only list the number of attendant care hours provided. Before filing suit, Plaintiff sent Defendant a letter prepared by Susan Thomas, an attorney at Plaintiff's counsel's office, demanding reimbursement for the attendant care provided. (Doc. 1 at 13). The letter included the typed calendars Thomas created. (Doc. 1 at 14-24). After Defendant failed to comply with the letter demands, Plaintiff brought this action.
Plaintiff originally filed suit in Oakland County Circuit Court on January 7, 2009. Defendant removed to this Court, which assigned the case to District Judge JohnFeikens. Judge Feikens referred all pretrial matters to Magistrate Judge Paul Komives. On November 24, 2010, the case was reassigned to this Court, which also referred all pretrial matters to Magistrate Judge Komives.
During the first deposition of Plaintiff, which took place on August 20, 2009, Plaintiff's counsel stated the handwritten calendars Plaintiff kept were attorney-client privileged documents. On December 3, 2009, Defendant moved to compel the production of Plaintiff's handwritten calendars, arguing the typed calendars were not reasonable proof. After conducting a hearing, Magistrate Komives issued an Order compelling the production of "any and all calendars and other documents, for the period of January 2008 to present, created by Plaintiff that detail the attendant care benefits allegedly provided." Judge Feikens affirmed this decision.
In response to discrepancies found between the originally submitted typed calendars attorney Thomas created and the handwritten calendars Plaintiff created, the Magistrate Judge allowed Defendant to depose Plaintiff a second time. During this, defense counsel asked Plaintiff if she sent her attorneys any paperwork or documents besides her written calendars. Plaintiff's counsel objected to this question and all others regarding communication between Plaintiff and Thomas, despite the Court's order compelling Plaintiff to produce all documents Plaintiff created detailing the alleged attendant care benefits provided.
On August 6, 2010, Defendant moved to compel the deposition of Susan Thomas to discover non-privileged information underlying the creation of the typed calendars. Magistrate Komives held a hearing October 15, 2010, and on January 5,2011, he issued an Order granting Defendant's motion. The Order limited the deposition to "questions regarding the communication of facts underlying the creation of the calendars." Plaintiff filed timely objections to the Magistrate's Order, to which Defendant responded. On July 19, 2011, this Court held a hearing on Plaintiff's objections to the Magistrate's Order Compelling the Deposition of Susan Thomas.
The Court may not overturn a Magistrate's decision on a pretrial, non-dispositive matter unless it was clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). The "clearly erroneous" standard applies to the Magistrate's factual findings, whereas the Court reviews his legal conclusions under the "contrary to law" standard. Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D.Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court . . . is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 330 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). If more than one permissible view of the evidence exists, the Magistrate's decision cannot be clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct.1504, 84 L.Ed.2d 518 (1985). "A legal conclusion is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Watson v. State Farm Mut. Auto. Ins. Co., No. 09-12573, 2010 WL 2287148, at *5 (E.D.Mich. June 4, 2010) (citations omitted). The "contrary to law" standard requires the Court to use independent judgment when reviewing legal conclusions. Gandee, 785 F.Supp. at 686. Whether thediscovery sought by Defendant is privileged is a mixed question of law and fact, subject to de novo review. Ross v. City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005) (citation omitted).
Plaintiff's first objection is the Opinion and Order breaches the attorney-client privilege without citing any extraordinary circumstances. In a diversity case, the Court must apply state law to resolve an attorney-client privilege claim. Fed.R.Evid. 501; In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) (citations omitted). Plaintiff cites to a footnote in Leibel v. Gen. Motors Corp., 250 Mich.App. 229, 241, 646 N.W.2d 179 (2002), which describes the attorney-client privilege as one of the "most fundamental of all legal relationships," and states that it should only be breached under "extraordinary circumstances." However, the attorney-client privilege is not absolute; "[t]he scope of the attorney-client privilege is narrow, attaching only to confidential communications by the client to [her] attorney made for the purpose of obtaining legal advice." Reed Dairy Farm v. Consumers Power Co., 227 Mich.App. 614, 618-19, 576 N.W.2d 709 (1998) (citation omitted). Furthermore, the attorney-client privilege only protects communications a plaintiff makes to its attorney; it does not protect relevant facts underlying the communications. Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege does not permit concealing relevant facts just because the client communicated them to the attorney. Id. at 396 (citation omitted).
Plaintiff argues the attorney-client privilege applies to all communications made between a client and the client's attorney. She contends if the privilege does not protect all communications, clients would not be candid with their attorney, and thus, attorneys would not be able to provide proper legal advice. Defendant argues the privilege only protects communications, not the facts underlying them. Defendant also states the underlying facts of the calendars are essential to its case, as they are Plaintiff's alleged reasonable proof of the attendant care provided.
Plaintiff brought this suit to recover benefits illustrated on Plaintiff's typed calendars. The typed calendars show nothing other than the number of hours. After successfully moving to compel the discovery of Plaintiff's handwritten calendars, Defendant showed a number of discrepancies exist between the handwritten and typed calendars. During oral argument, Plaintiff argued it is not reasonable for Defendant to want to discover why the discrepancies exist because Defendant had the opportunity to depose Plaintiff, and there are only slight variations between the calendars. In response, Defendant said Plaintiff's counsel objected to questions concerning documents besides the written calendars that Plaintiff provided her attorneys. Defendant said Plaintiff's counsel objected to questions that could explain the discrepancies between the calendars. Defendant also asserted the discrepancies call into question the credibility of the claim.
The typed calendars are what triggered Plaintiff's claim. How Susan Thomas created them is central to this case. Whether the typed calendars constitute reasonable proof is an important question. In its motion for partial summary judgment, Plaintiff saysit is entitled to penalty interest because Defendant was more than 30 days late paying. Under Mich. Comp. Laws § 500.3142, an insured is entitled to 12% penalty interest if it provides the insurer reasonable proof of the fact and amount of loss, and the insurer is over 30 days late paying. Because Plaintiff made the typed...
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