United States District Court, S.D. Florida
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,
GEICO GENERAL INSURANCE COMPANY, Defendant.
ORDER DENYING DEFENDANT'S AMENDED MOTION TO
G. TORRES UNITED STATES MAGISTRATE JUDGE
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.
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.
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”). 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.
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.
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.
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.
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.
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.
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))).
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)).
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.