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Smith v. Shelter Mutual Insurance Co.

United States District Court, M.D. Louisiana

March 12, 2018

BRADLEY W. SMITH
v.
SHELTER MUTUAL INSURANCE CO.

          ORDER

          RICHARD L. BOURGEOIS, JR. JUDGE

         Before 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. 88).

         I. Factual and Procedural History

         This is 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 bifurcated trial.

         On June 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.

         On June 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).

         On July 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).

         Smith 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).

         On 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).

         On 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).

         On 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).

         II. Law and Analysis

         A. Propriety of Blanket In Camera Review

         “Trial 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).

         “When 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)).

         Smith 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).

         Such a 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 ...


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