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Beaubrun v. Geico General Insurance Co.

United States District Court, S.D. Florida

May 4, 2017

MARKIVIA BEAUBRUN, individual and as Personal Representative of the Estate of GEORGE SPENCE CLAYTON, Jr. deceased and as Assignee of the Estate of CARLOS BERNARD BROWN, deceased, Plaintiff,



         This matter is before the Court on Geico General Insurance Company's (“Defendant”) Amended Motion to Compel (“Motion”) [D.E. 24] against Markivia Beaubrun (“Plaintiff”) (“Defendant”) to compel discovery. Plaintiff responded to Defendant's Motion on April 26, 2017 [D.E. 28] to which Defendant replied on May 3, 2017. [D.E. 29]. Therefore, this Motion is now ripe for disposition. After careful consideration of the Motion, response, and relevant authority, and for the reasons discussed below, Defendant's Motion is DENIED.

         I. BACKGROUND

         This action arises out of an August 8, 2015 automobile accident involving the Defendant's insured, Carlos Bernard Brown, and his passenger, George Spence Clayton, which resulted in their deaths. [D.E. 1-1]. At the time of the accident, Brown, the driver, was insured under a GEICO policy of insurance. See Id. ¶ 7. The Policy provided bodily injury limits of $10, 000/$20, 000 per occurrence. See Id. The effective dates of coverage under the policy were from February 10, 2015 through August 10, 2015. See Id. As a result of the accident, the Estate of Clayton filed a wrongful death action against the Estate of Brown in the Eleventh Judicial Circuit Court in and for Miami-Dade County on March 9, 2016. See Id. ¶ 8. Defendant was timely notified of the pendency of the lawsuit, but did not provide a defense to the Estate of Brown. See Id. ¶ 9.

         On May 10, 2016, the Estate of Clayton and the Estate of Brown (collectively, the “Estates”) entered into a “Stipulation and Agreement for Settlement of Claim and Covenant Not to Sue” and an “Agreement for Assignment of Claims” (the “Agreements”).[1] See Id. ¶ 10. Pursuant to the terms of the Agreements, the court entered judgment against the Estate of Brown in the amount of four million dollars. See Id. ¶ 11.

         On August 16, 2016, Plaintiff filed suit in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Case No. 2016-021339. In that complaint, Plaintiff requests declaratory relief pursuant to Fla. Stat. § 86.011, set forth allegations of bad faith against Defendant, and seeks recovery of the full loss of the damage to the vehicle, pre-judgment interest, and attorney's fees. Defendant removed the case to this Court on October 3, 2016 on the basis of diversity jurisdiction.[2]

         On November 17, 2016, the Court denied Defendant's Motion to dismiss Count II (the bad faith claim) of Plaintiff's complaint. Rather than dismiss Plaintiff's claim, the Court abated it until the Court could properly determine Plaintiff's rights under the applicable insurance policy.

         II. ANALYSIS

         Defendant's Motion seeks to compel discovery based on Plaintiff's responses to Defendant's first and second requests for production. More specifically, Plaintiff's privilege log identified May 6 and May 9, 2016 emails that purportedly relate to the settlement negotiations that took place between the Estates in the underlying action. Irrespective of Plaintiff's contention that the documents are protected under the work product doctrine, Defendant argues that it has a substantial need to obtain the discovery of materials related to any settlement negotiations or discussions that took place between the parties' representatives in the underlying suit. Defendant also allegedly has a substantial need to obtain any documents Plaintiff intends to rely on to support the allegation in the complaint that Defendant was timely notified of the underlying suit.

         The U.S. Supreme Court set forth the work-product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947) to protect a lawyer's ability to prepare cases and theories, and to prevent opponents from taking advantage of his work or disrupt ongoing litigation. Rule 26(b)(3)(A)(ii) protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)” unless the requesting party “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Thus, the Rule protects from disclosure materials prepared by an attorney in anticipation of litigation.

         “The work product doctrine is distinct from and broader than the attorney-client privilege, and it protects materials prepared by the attorney, whether or not disclosed to the client, as well as materials prepared by agents for the attorney.” Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 653 (S.D. Fla. 2009) (citing In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979)). Moreover, “because the work product privilege looks to the vitality of the adversary system rather than simply seeking to preserve confidentiality, it is not automatically waived by the disclosure to a third party.” In re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000). Yet, this still requires the party asserting protection under the work product doctrine to demonstrate that the drafting entity anticipated litigation at the time the documents were drafted. See CSX Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421, at *2 (M.D. Fla. July 20, 1995). This means that materials drafted in the ordinary course of business are not protected under the work product doctrine.

         In determining whether materials are protected, a court must determine when and why a contested document was created. See, e.g. In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (“The ‘testing question' for the work-product privilege . . . is ‘whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'”). And similar to the attorney-client privilege, “the burden is on the party withholding discovery to show that the documents should be afforded work-product [protection].” Fojtasek, 262 F.R.D. at 654 (citing United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) (applying rule for attorney-client issue); Essex Builders Group, Inc. v. Amerisure Insurance Company, 2006 WL 1733857 at *2 (M.D. Fla. June 20, 2006) (“[T]he party asserting work product privilege has the burden of showing the applicability of the doctrine”) (citing Grand Jury Proceedings v. United States, 156 F.3d 1038, 1042 (10th Cir. 1998))).

         The application of Rule 26(b)(3) requires the Court to first determine which documents were produced in anticipation of litigation. “For documents that were produced in anticipation of litigation, the second issue is whether [the moving party] can show ‘substantial need' and an inability to obtain the materials by other means.” Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D. 663, 667 (N.D.Ga. 2008). “Even as to documents for which [the moving party] can show substantial need, documents containing the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative must'” receive additional (if not complete) protection. Id. (quoting Fed.R.Civ.P. 26(b)(3)). In short, “the moving party must demonstrate that the materials are discoverable under Rule 26(b)(1), there is a substantial need for the materials to prepare its case, and that it cannot, without undue hardship, obtain the substantial equivalent by other means.” Batchelor v. Geico Cas. Co., 2014 WL 3697691, at *3 (M.D. Fla. Apr. 22, 2014) (citing Fed.R.Civ.P. 26(b)(3)(A)).

         Although the bad faith claim is abated in this action, Defendant argues that the same principles for the production of work product documents should continue to control the discovery of relevant materials. Defendant notes that “[u]nder Florida law, an insurer owes its insured a duty of care when it defends a claim against him.” Griffith v. Geico Gen. Ins. Co., 2013 WL 12148857, at *2 (M.D. Fla. Dec. 12, 2013) (citing Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla. 1980)). Whether the insurer breached that duty is analyzed under the totality of the circumstances. And “[g]iven that a bad-faith-insurance case involves an underlying case allegedly handled in bad faith by the insurer, the Florida Supreme Court has held that work-product protection that would otherwise be given to documents prepared in anticipation of litigation of the underlying case does not automatically operate to protect those documents from discovery in a bad-faith-insurance case.” Griffith, 2013 WL 12148857, at *2 (citing Allstate Indem. Co. v. Ruiz,899 So.2d 1121, 1130-31 (Fla. 2005)). Therefore, Defendant suggests that the work product protection has been automatically eviscerated and that Plaintiff must provide the requested materials. SeeKemm v. Allstate Prop. & Cas. Ins. ...

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