United States District Court, M.D. Louisiana
BRADLEY W. SMITH
SHELTER MUTUAL INSURANCE CO.
RICHARD L. BOURGEOIS, JR. JUDGE
the Court is Plaintiff's Motion for In Camera
Review of Documents with Request for Expedited Consideration
(R. Doc. 79) filed on November 29, 2017. The Motion is
opposed. (R. Doc. 83). Plaintiff has filed a Reply. (R. Doc.
Factual and Procedural History
an insurance action arising out of an automobile-pedestrian
accident on August 13, 2001 involving Bradley W. Smith
(“Smith” or “Plaintiff”) and Paul
Babin (“Babin”). After the accident, Smith filed
a state court lawsuit against Babin and his insurance
company, Shelter Mutual Insurance Company
(“Shelter” or “Defendant”). After
conducting a bifurcated trial, the trial judge dismissed with
prejudice Babin's cross-claims against Shelter for
alleged bad faith in refusing to provide Babin with a legal
defense, misrepresenting the coverage under the Shelter
policy, and failure to indemnify Babin. Thereafter, Babin
sought review of the trial court's finding that Shelter
did not have a duty to defend Babin. The Louisiana First
Circuit Court of Appeal affirmed. Babin also sought review of
the trial court's dismissal of his claims of
misrepresentation and for failure to indemnify. The Louisiana
First Circuit held the issue was not properly before the
court on appeal because Shelter had admitted coverage and
paid its policy limits after the jury trial portion of the
3, 2015, Smith filed the instant lawsuit, under an assignment
of rights from Babin, seeking to collect from Shelter the
excess amount of the state trial court judgment beyond the
policy liability amount of $10, 000 per person, and for bad
faith damages pursuant to La. R.S. 22:1892 and La. R.S.
22:1973. (R. Doc. 1). The district judge dismissed
Smith's claims for bad faith damages as barred by res
judicata, but allowed Smith to proceed on his excess judgment
liability claim under La. R.S. 22:1973. (R. Doc. 27; R. Doc.
55). The district judge has also allowed Smith to seek
discovery on this excess judgment liability claim pursuant to
Rule 56(d) of the Federal Rules of Civil Procedure. (R. Doc.
37). These rulings by the district judge necessarily define
the scope of discovery in this matter.
24, 2016, Smith served his First Set of Interrogatories and
Requests for Production of Documents and Things on Shelter.
(R. Doc. 54-3). These discovery requests have been subject to
various discovery motions. In relevant part, Smith filed a
motion on June 1, 2017 seeking an order compelling
supplemental responses. (R. Doc. 54). The Court granted the
foregoing motion in part, ordering Shelter to provide
supplemental responses to certain discovery requests,
including any privilege log consistent with Rule 26(b)(5)(A)
and Local Rule 26(c). (R. Doc. 63).
24, 2017, Shelter provided its second supplemental responses,
including a privilege log withholding various documents on
the basis of attorney-client privilege and the work product
doctrine. (R. Doc. 79-4).
then filed another motion seeking an order compelling, among
other things, an additional supplemental response to
Interrogatory No. 7, which sought information regarding
Shelter's knowledge surrounding the policy's
exclusionary language and when such knowledge was obtained.
(R. Doc. 64).
September 7, 2017, the Court denied the foregoing motion with
regard to Interrogatory No. 7, concluding that Shelter's
second supplemental response was sufficient. (R. Doc. 69 at
3-4). In so holding, the Court noted that Shelter
“abandoned its objection based on the attorney-client
privilege, ” as no such objection was raised in the
supplemental response. (R. Doc. 69 at 3).
October 10, 2017, defense counsel initiated a telephone call
with the undersigned's chambers during the deposition of
Vickie Davis in her individual capacity. (R. Doc. 78). The
undersigned informed the parties that to the extent the
information sought by Smith fell within the scope of
Shelter's response to Interrogatory No. 7, Shelter had
waived the attorney-client privilege as discussed in the
September 7, 2017 Order. (R. Doc. 78 at 2). The Court further
stated that “[w]ithout a specific question before the
Court or the particular basis for a refused response, ”
the Court would not provide any further guidance on the
issue. (R. Doc. 78 at 2).
November 22, 2017, Smith filed the instant Motion, which
seeks in camera review of all documents withheld on
Shelter's privilege log. (R. Doc. 79).
Law and Analysis
Propriety of Blanket In Camera Review
courts possess broad discretion to supervise
discovery.” Landry v. Air Line Pilots Ass'n
Int'l AFL-CIO, 901 F.2d 404, 436 n.114 (5th Cir.
1990) (citation omitted). The decision whether to conduct an
in camera review is within the district court's
discretion. See United Investors Life Ins. Co. v.
Nationwide Life Ins. Co., 233 F.R.D. 483, 486 (N.D.
Miss. 2006) (citation omitted) (“Federal courts
maintain broad discretion in discovery matters, and the
election to conduct an in camera review is well
within the bounds of that discretion.”); see also
Stephenson v. I.R.S., 629 F.2d 1140, 1145 (5th Cir.
1980) (citation omitted).
a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to
protection as trial-preparation material, the party must: (i)
expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or
disclosed--and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).
Blanket assertions of a privilege are unacceptable, and the
court and other parties must be able to test the merits of a
privilege claim. United States v. El Paso Co., 682
F.2d 530, 541 (5th Cir. 1982) (citing United States v.
Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir. 1981)).
does not identify any specific documents identified on
Shelter's privilege log that fail to meet the
requirements of Rule 26(b)(5)(A) or otherwise should be
susceptible to in camera review in light of the
arguments raised in Smith's motion. Instead, Smith
requests the Court to conduct an in camera review of
the “approximately 139 documents” identified on
Shelter's privilege log to determine whether and to what
extent documents have been improperly withheld on the basis
of the attorney-client privilege and/or the work product
doctrine. (R. Doc. 79 at 1).
blanket review of every document identified on Shelter's
privilege log “would constitute a great and unnecessary
expenditure of judicial resources.” See United
States v. Homeward Residential, Inc., No. 12-461, 2016
WL 1031154, at *4 (E.D. Tex. Mar. 15, 2016); United
Inv'rs Life Ins. Co. v. Nationwide Life Ins. Co.,
233 F.R.D. 483, 486 (N.D. Miss. 2006). Accordingly, the ...