United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
USAA CASUALTY INSURANCE COMPANY'S MOTION TO COMPEL BETTER
DISCOVERY RESPONSES IDE 601
WILLIAM MATTHEXVMAN UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court upon Defendant, USAA
Casualty Insurance Company's ("Defendant")
Motion to Compel Better Discovery Responses. [DE 60]. This
matter was referred to the undersigned by United States
District Judge Kenneth A. Marra upon an Order referring all
discovery matters to the undersigned for appropriate
disposition. See DE 13. Plaintiff, Nelida Kehle
("Plaintiff) filed a Response to the Motion [DE 63] and
Defendant filed a Reply [DE 64]. The Court held a hearing on
the Motion on March 12, 2018. The Court has also carefully
conducted an in camera review of numerous emails at
issue in this discovery dispute. The matter is now ripe for
discovery dispute involves Defendant USAA's demand that
Plaintiff Kehle produce:
a. Emails, withheld by Plaintiff as privileged work product,
between Mr. Steve Rothman, Esq., who represented Plaintiff in
the underlying state court litigation, and Mr. Robert Major,
Esq. and Mr. Fred Cunningham, Esq., who currently represent
Plaintiff in the current federal litigation; and
b. Additional information requested in Interrogatories 17,
18, 19, and 22 of Defendant's First Set of
Interrogatories relating to Mr. Henderson's consent to
liability, the settlement agreement, and the arbitration
Court assumes the reader's familiarity with its prior
lengthy Order at ¶ 49 which required production of
certain documents requested by Defendant related to the
hybrid- Co6/e«/z/arbitration agreement at issue in this
case. After the entry of the Court's prior
Order, certain documents were produced to Defendant, and
Plaintiff served Amended Discovery Responses in light of this
Court's Order. Upon receipt of those amended responses,
Defendant filed the pending Motion to Compel [DE 60] which
takes issue with the emails withheld by Plaintiff as work
product, as well as Plaintiffs responses to Interrogatories
17, 18, 19, and 22.
dispute solely involves the work-product privilege. Plaintiff
objects to the discovery sought by Defendant on work-product
privilege grounds. Defendant asserts that Plaintiff has
waived any work-product privilege due to issue injection and
that Defendant has a substantial need for the documents and
information to present its defense in this case.
MOTION TO COMPEL. RESPONSE AND REPLY
February 22, 2018, Defendant filed its Motion to Compel
Better Discovery Responses. [DE 60]. In addition to the
emails requested, the specific interrogatories at issue are:
Interrogatory Number 17; Paragraph
15 of the Complaint in the Underlying Action (attached as
Exhibit D to your Amended Complaint) states that
"Henderson was operating the Vessel with and at the
direction of Munson." Paragraph 15 of the Second Amended
Complaint in the Underlying Action (attached as Exhibit E to
your Amended Complaint) states that "Henderson was
operating the Vessel with and as a personal favor to
Munson." Please state with specificity the following:
(a) The reason(s) and/or circumstance(s) which caused you to
revise Paragraph 15;
(b) Describe any discussions and/or communications relating
to the revision of Paragraph 15; and
(c) A list of any and all documents that support your
revision to Paragraph 15.
Number 18: In the underlying action Mr. Henderson, Mr.
Munson, and Nuncio were allegedly negligent causing injury to
Mr. Kehle. Please state with specificity the following:
(a) The reason(s), circumstance(s), and supporting evidence
supporting the assertion that Mr. Henderson, Mr. Munson,
and/or Nuncio was negligent;
(b) The apportionment of fault you believed was attributable
to Mr. Henderson, Mr. Munson, and/or Nuncio; and
(c) The specific acts that you contended Mr. Henderson
Number 19: In Paragraph 23 of the Amended Complaint you
allege that "the parties agreed to submit the issue of
the amount of damages sustained by Mr. Kehle as a result of
the negligence of Henderson to Binding Arbitration".
Please state with specificity the following:
(a) The reasons and/or circumstances the underlying action
was submitted to Binding Arbitration, including who suggested
Binding Arbitration and a list of documents related thereto;
(b) Whether the issue of negligence was submitted to the
Binding Arbitrator and if so please state the reason(s),
circumstance(s), and evidence supporting the assertion that
(c) The reason(s) and/or circumstance(s) why the issue of
negligence was not submitted to Binding Arbitration,
including a list of any and all documents related thereto;
(d) Did Mr. Henderson concede and/or admit negligence? Please
state with specificity the following:
i. The reason(s) and/or circumstance(s) why Mr. Henderson
conceded/admitted negligence, including a list of any and all
documents related thereto; and
ii. Please describe and/or summarize any and all
communications with Mr. Henderson relating to his
concession/admission of negligence.
Interrogatory Number 22: Please state with
specificity why Mr. Courtney Munson and Nuncio were dropped
from the Underlying Action, a list of any documents relating
to them being dropped, and why no other defendant was dropped
from the Underlying Action.
Defendant's Position as Stated in Its Motion and
forth in its Motion [DE 60], Defendant claims that Plaintiff
has waived all of her work-product objections to the
production of the emails at issue and to the responses to the
interrogatories through the doctrine of issue injection.
Defendant argues that because Plaintiff seeks to recover the
arbitration award through a Coblentz-style
agreement,  she has voluntarily asserted that the
settlement agreement and arbitration were reasonable and in
good faith. [DE 60, pgs. 1-4]. Because Plaintiff has the
burden to prove the elements of reasonableness and good faith
in order to recover under a Coblentz agreement,
Defendant asserts that it is Plaintiff who has injected the
issues into the case. Id. Therefore, Plaintiff
should not be permitted to produce evidence directly related
to the issues of good faith but simultaneously prevent
Defendant from related discovery to rebuff her claims. [DE
60, pgs. 5-6]. Defendant asserts that it is entitled to
rebuff Plaintiff s claims of good faith through "broad
discovery" and the email correspondence at issue,
generally categorized as "arbitration, "
"settlement, " "dismissal, " and
"strategy, " is necessary to determine if the
Coblentz agreement at issue was tainted by bad
faith, fraud, or collusion. Id. at 6.
support this contention, Defendant argues that Plaintiff has
made the protected information, specifically, the emails
between Plaintiffs prior and current counsel, highly relevant
to the case because the emails show that counsel colluded in
bad faith against Defendant USAA. [DE 60, pg. 5]. Defendant
asserts that its preliminary discovery supports the
proposition that the attorneys in this case, namely, Mr.
Rothman, Mr. Major, Mr. Cunningham, and Mr. Michael Knecht,
Esq., counsel for Henderson, the insured, "plotted
together and jointly consulted bad faith attorneys."
Id. Defendant claims that the attorneys decided to
dismiss Mr. Munson from the underlying lawsuit in bad faith,
and failed to hire a court reporter at the underlying
arbitration in order to conceal their bad faith. Id.
Defendant asserts that because establishing that bad faith,
fraud, and collusion existed in the underlying settlement
agreement is vital to its defense, Defendant should be
entitled to broad discovery of the "approximately
90" emails between Mr. Rothman and Mr. Major and Mr.
Cunningham. Defendant claims that these emails
"go to the very heart of reasonableness and good
faith" [DE 60, pg. 6] and alleges that denial of
discovery into issues that Plaintiff voluntarily injected
into the case would be manifestly unfair. Id.
Defendant asserts that Plaintiff is the primary source of
evidence that her attorneys "colluded with the insured
against USAA CIC" in consenting to liability, entering
into a settlement agreement, and entering arbitration.
Id. Defendant argues that denying it access to this
highly relevant information would preclude Defendant from
probing into the issues of bad faith, fraud, and collusion
and would hinder its ability to defend itself against
Plaintiffs claims. Id.
Plaintiffs Position as Stated in Her Response
filed her Response on March 2, 2018. [DE 63]. Plaintiff
argues that she has not injected the issues of bad faith,
fraud, and collusion into the case simply by filing suit to
enforce a Coblentz agreement. [DE 63, pg. 2].
Instead, she claims, it is Defendant who has injected these
issues into the litigation because Defendant is asserting bad
faith, fraud, and collusion as affirmative defenses.
Id. Therefore, according to Plaintiff, Defendant
bears the burden of proof and is the injecting party.
Id. Plaintiff argues that there is no blanket waiver
of privilege merely because she has filed suit to enforce a
Coblentz agreement. Id. Plaintiff further
argues that the emails constitute opinion work product, which
"enjoys a ...