United States District Court, D. New Jersey
MEMORANDUM OPINION & ORDER
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on a joint submission by the
parties concerning a discovery dispute. Plaintiff asks the
Court to compel Defendant to produce certain documents and
communications that Defendant has withheld on the basis the
attorney-client privilege and/or work product doctrine.
See Joint Submission dated June 18, 2018 at ECF No.
24. Defendant has opposed that request. Id.
relevant factual and procedural history of this case, which
is well known to the Court and the parties, is set forth in
the Joint Submission and need not be recited here.
Id. at 1-2. In the course of discovery, Defendant
produced a Privilege Log which described numerous documents
and communications which Defendant has declined to produce
(the “Withheld Documents”) based on its assertion
of either the attorney-client privilege or the work product
doctrine. Id. at Ex. A. The Withheld Documents
consist of (1) insurance claims file notes and (2)
pre-litigation communications, and Plaintiff argues that
neither privilege applies to the Withheld Documents. With
respect to the claims file notes, Plaintiff contends that
these “were prepared by Defendant in the regular course
of business while evaluating whether to approve or deny
[Plaintiff's] request for a Life Care Plan and the
proposed structured settlement to fund the same.” ECF
No. 24 at 6. Plaintiff maintains that the claims file notes
were not “exchanged between [Defendant] and its counsel
for the purpose of obtaining or providing legal assistant for
Defendant. Id. Consequently, Plaintiff argues, the
claims file notes are not shielded from disclosure by either
the attorney-client privilege or work product doctrine.
Plaintiff also argues that Defendants Privilege Log fails to
provide the required details and specificity to establish
that the privilege applies to the claims file notes.
Id. at 3.
with respect to the pre-litigation documents and
communications that relate to the Plaintiff's proposed
structured settlement and Life Care Plan, Plaintiff contends
that these documents “were created in the ordinary
course of Defendant's business, long before Defendant
denied the request for a Life Care Plan and years before the
Plaintiff initiated this lawsuit in 2015.” Id.
at 8. As such, Plaintiff argues, the work product doctrine
does not protect these documents from disclosure. Plaintiff
also argues that Defendant's Privilege Log lacks the
required factual predicate to establish that either the work
product doctrine or the attorney-client privilege applies;
and that the “vague assertion” of the privilege
or the “mere presence” of an attorney's name
on a document or communication is insufficient to establish
that the privilege applies. Id. at 9-10.
response, Defendant argues that “Plaintiff's demand
to overcome the [D]efendant's assertion of work
production privilege is primarily based upon one fundamental
flaw; that [the Withheld Documents] were created in the
ordinary course of the handling of an insurance claim.”
Id. at 11. Rather, according to Defendant, the
“work product documents” listed on
Defendant's Privilege Log relate to the potential
settlement of Plaintiff's claim for future benefits, and
not to any activity ordinarily undertaken by Defendant in the
handling of an insurance claim. Id. More
specifically, Defendant argues, the then-prevailing statutory
scheme did not contemplate any potential buy-out or other
settlement of an insured's claim for unlimited personal
injury protection benefits. “Therefore, [Defendant
concludes, ] any aspect of the claim involving that issue was
far from the [ordinary] handling of a claim.”
Id. at 13. In further support of its conclusion,
Defendant argues: (1) because the claim covers an
incapacitated person, any attempt to modify the claim would
necessarily require court approval; and (2) Defendant agreed
to pay for legal counsel for its insured “in light of
the need for litigation and to ensure fairness in any
respect to Defendant's assertion of the attorney-client
privilege as to certain of the Withheld Documents, Defendant
maintains that it has reviewed and revised its Privilege Log
based on Plaintiff's most recent objections and, as a
result, only 3 disputed documents have been withheld or
redacted based on attorney-client privilege. Defendant has
agreed to submit these documents for in camera
respect to the remaining Withheld Documents, the question
before the Court is whether these documents are protected
from disclosure by the work product doctrine. The work
product doctrine protects “documents and tangible
things ... prepared in anticipation of litigation or for
trial by or for another party or by or for that other
party's representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or
agent).” Fed.R.Civ.P. 26(b)(3). The doctrine
“shelters the mental processes of the attorney,
providing a privileged area within which he can analyze and
prepare his client's case.” Holmes v. Pension
Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d
Cir. 2000). It is well-established that the work product
doctrine does not cover documents prepared “in the
ordinary course of business”, rather, it protects those
prepared in anticipation of litigation. United States v.
Rockwell Int'l, 897 F.2d 1255, 1266 (3d Cir. 1990).
A document is considered to be prepared “in
anticipation of litigation [when] in light of the nature of
the document and the factual situation in the particular
case, the document can be fairly said to have been prepared
or obtained because of the prospect of litigation.”
In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.
spends much of its submission disputing Plaintiff's
assertion that the Withheld Documents were created in the
ordinary course of Defendant's business and, therefore,
are not protected from disclosure. Defendant argues that the
circumstances under which the documents were created - in
connection with Plaintiff's request for a Life Care Plan
- are outside of the scope of Defendant's ordinary
business activities. The Court, however, is not persuaded
that the unique nature of Plaintiff's request for a Life
Care Plan somehow renders Defendant's evaluation of that
request outside the ordinary scope of its business. It is
fundamental to the business of insurance to evaluate claims
importantly, however, Defendant's argument that the
disputed documents were not created in the ordinary course of
business misses the point. The critical inquiry here is not
whether the materials at issue were created in the ordinary
course of Defendant's business, it is whether Defendant
prepared the materials in anticipation of litigation. The
Court finds that Defendant has not made that showing.
maintains that, because of the involvement of an
incapacitated party, court intervention would have been
required if the parties had agreed to implement and fund a
Life Care Plan. As such, Defendant contends that “the
proposition of a policy buyout or structured settlement
inevitably and unquestionably required litigation, ”
and “all of the activities involved in the proposed
policy buyout were performed while anticipating [that]
litigation.” ECF No. 24 at 13.
even if Court approval would have been required had the
parties reached an agreement in connection with a Life Care
Plan, the Court finds that under the facts presented here the
work product doctrine does not shield the Withheld Documents.
The work product rule is designed to protect an
attorney's work from his litigation adversary. Shielding
work product from disclosure “promotes the adversary
system by enabling attorneys to prepare cases without fear
that their work product will be used against their
clients.” In re Grand Jury Matter #3, 847 F.3d
157, 165 (3d Cir. 2017) (quoting Westinghouse Elec. Corp.
v. Republic of Phil., 951 F.2d 1414, 1428 (3d Cir.
1991)). The “litigation” contemplated by the work
product doctrine, therefore, is an adversarial proceeding.
See Community Ass'n Underwriters of Am., Inc. v.
Queensboro Flooring Corp., No. 10-1559, 2014 WL 4165385,
at *3 (M.D. Pa. Aug. 20, 2014) (“In distinguishing
between proceedings which qualify as litigation and those
that do not, the adversarial nature of the proceeding is
characteristic of litigation.”); Elcommerce.com,
Inc. v. SAP AG, No. 09-4458, 2010 WL 3421101, at *3
(E.D. Pa. Aug. 27, 2010) (“The purpose of the
work-product privilege is to promote a fair and efficient
adversarial system by protecting the attorney's thought
processes and legal recommendations from the prying eyes of
his or her opponent.”) (quotations omitted).
time the documents at issue were created, the parties were
neither engaged in or anticipating an adversarial proceeding.
Rather, Plaintiff had proposed to Defendant an alternative
for addressing claims for future medical costs, and that
proposal was being considered by Defendant. While Defendant
may have contemplated seeking judicial approval of such an
agreement, under the present facts this is not sufficient.
Such a proceeding would not have been adversarial in nature,
would not have involved a settlement resolving an adversarial
proceeding, and would not have involved the settlement of a
potential adversarial proceeding based on a denial of a
claim, as the documents were created before Defendant denied
Plaintiff's request for the Life Care Plan. Given these
facts, the Court finds that the documents were not created in
anticipation of litigation and, therefore, do not fall within
the scope of the protection of the work product doctrine.
Accordingly, IT IS on this 14th day of
August 2018, ORDERED that the 3 documents
being withheld by Defendant on the basis of attorney-client
privilege are to be submitted to the Court for in
camera review no later than August 17, 2018; and it is
that the remaining Withheld Documents are to be produced to