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Flanagan v. Nationwide Property and Casualty Insurance Co.

United States District Court, S.D. Mississippi, Eastern Division

August 4, 2017

CRAIG FLANAGAN, ET AL. PLAINTIFFS
v.
NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY DEFENDANT

          ORDER

          Michael T. Parker UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion to Compel [32]. Having considered the parties' submissions and the applicable law, the Court finds that the Motion [32] should be granted.

         BACKGROUND

         In this action, Plaintiffs assert a bad faith claim against Defendant Nationwide Property and Casualty Insurance Company (“Nationwide”) arising from Nationwide's alleged wrongful failure to pay the total amount of proceeds owed to Plaintiff Craig Flanagan (“Flanagan”) under an uninsured/underinsured motorist coverage policy after Flanagan was involved in a motor vehicle accident on May 31, 2014. (Amended Complaint [22]). During the investigation of the accident, Nationwide sought the services of Attorney William McDonough with the law firm of Copeland Cook Taylor and Bush. (Motion [32]; Nationwide's Brief [38]). Subsequently, McDonough assisted Nationwide in its investigation of Flanagan's uninsured motorist claim.

         On March 7, 2017, Plaintiffs filed this action. Thereafter, Plaintiffs served its first set of requests for production upon Nationwide, which included the following request:

Request No. 3: Produce all documents and other materials . . . that comprise your claims file(s)/investigative files(s)/special investigative file(s)/outside counsel file(s) relating to the subject claims up until the date that you retained the law firm of Upshaw Williams to defend this matter.

([32-3]).

         Nationwide objected to this request, asserting the attorney-client privilege and the work product doctrine. Notwithstanding this objection, Nationwide pointed Plaintiff to its initial disclosures and produced other documents. Nationwide, however, withheld certain other documents, which included communications between McDonough and Nationwide, and listed those documents in a privilege log. ([32-3]; [32-4]).

         Additionally, on June 22, 2017, Plaintiffs had a subpoena issued to and served on McDonough, requesting that he produce, inter alia, “[a]ll billing records or invoices for Copeland Cook Taylor and Bush, including billing guidelines and records documenting billings that Nationwide refused to pay . . . .” ([25-1]). Both McDonough and Nationwide objected to the subpoena, arguing that the billing statements are protected by the attorney-client privilege and the work product doctrine. ([30], [31]).

         On July 7, 2017, Plaintiffs filed the instant Motion [32], requesting that the Court compel Nationwide to produce its communications with McDonough and compel McDonough to produce his billing records or invoices and billing guidelines. Plaintiff argue that they are entitled to the documents because the protections afforded by the attorney-client privilege and the work product doctrine were either inapplicable to the documents at issue or waived by Nationwide.

         ANALYSIS

         Attorney-Client Privilege

         Pursuant to Federal Rule of Evidence 501, state law determines the applicability of a privilege in diversity actions such as the case sub judice. Thus, Mississippi law governs this privilege issue. In Mississippi, the attorney-client privilege is defined as the client's right to refuse to disclose and prevent others from “disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . .” Miss. R. Evid. 502(b).

         “‘The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby to promote broader public interests in the observance of law and administration of justice.'” Hewes v. Langston, 853 So.2d 1237, 1244 (Miss. 2003) (quoting Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981)). This privilege is broad, but it may be waived. A waiver may occur when a client reveals otherwise privileged communications to a third party. A client may also waive the attorney-client privilege and make information discoverable “‘[b]y voluntarily injecting into a litigated case, a material issue which requires ultimate disclosure by the attorney of the information, ...


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