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Hilborn v. Metropolitan Group Property and Casualty Insurance Co.

United States District Court, Ninth Circuit

November 15, 2013



B. LYNN WINMILL, Chief District Judge.


The Court has before it Plaintiffs' Motion to Compel Complete Responses to Discovery (Dkt. 25). For the reasons explained below, the Court will grant the motion in part and deny the motion in part.


I. Motion to Compel

The Court may order the "discovery of any matter relevant to the subject matter involved in the action." Fed.R.Civ.P. 26(b) (1). Relevant evidence is any evidence tending to make the existence of any consequential fact "more probable or less probable than it would be without the evidence." Federal Rule of Evidence 401. Although viewed in light of Rule 401, "the question of relevancy is to be more loosely construed at the discovery stage than at the trial...." See 8 Wright, Miller, and Marcus, Federal Practice & Procedure, ยง 2008 at p. 125 (2010). That the evidence might be inadmissible does not preclude discovery so long as the request "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R. Civ.P. 26(b)(1).

Here, the discovery process between the parties has been dysfunctional at best. The parties have tried on several occasions to resolve their disputes through the Court's informal mediation process with Court staff. Some progress has been made, but at the expense of delaying the case. After the parties and Court staff ultimately agreed that any remaining discovery disputes should be briefed for formal resolution, the Hilborns filed their pending Motion to Compel.

The Hilborns cover a lot of ground in their motion, but it is a bit disjointed in its organization. There is clearly frustration on the part of counsel, and based upon Court staff's involvement in the informal mediation process, some of that frustration is understandable - Metropolitan has been slow to engage in discovery, with a false belief that the Court's deadlines can be continuously extended. Still, the pending motion lacks the clarity needed to easily resolve it. In the end, the motion makes what appears to be six general requests under the relief requested section of the brief. The Court will use those six requests to organize the Court's decision.

1. Request For Claims File, Full Responses To Discovery Requests, Waiver of Privilege, and In Camera Inspection.

The first three requests appear to be related and stem mostly from the parties' disagreement about whether certain material is covered by the attorney-client privilege or work product doctrine. Moreover, Metropolitan states that it will certify that it has produced all requested documents to the Hilborns except those "withheld under a claim of privilege...." Def.'s Resp., p. 8, Dkt. 36. Accordingly, the Court will address these three requests together, in the context of privilege and the work produce doctrine.

A. Attorney-Client Privilege

Generally, the party seeking to withhold documents from discovery on the basis of privilege and work product has the burden of proving that those doctrines apply to the documents in question. See In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007). The attorney-client privilege is governed by Idaho law. See Fed.R.Evid. 501. The applicable Idaho rule is Idaho Rule of Evidence 502 that provides a privilege for, among other things, "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client which were made... between the client or the client's representative and the client's lawyer...."

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 privilege only protects 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 (1981). That a person is a lawyer does not make all communication with that person privileged. Id.

Additionally, as both parties have recognized, this Court recently issued a decision in Stewart Title Guar. Co. v. Credit Suisse, 2013 WL 1385265 (D.Idaho 2013) addressing the extent of the attorney-client privilege in bad faith cases. In that case, the Court indicated that it believed the Idaho Supreme Court would agree with the Washington Supreme Court's holding in Cedell v. Farmers Insurance Co. of Washington, 295 P.3d 239 (Wash.Sup.Ct. 2013). In Cedell, plaintiff Cedell filed a claim with Farmers Insurance after his home burned down. Farmers hired attorney ...

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