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Powelson v. Brashier

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

April 22, 2019

JOE C. POWELSON PLAINTIFF
v.
ANNA BRASHIER and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY DEFENDANTS

          ORDER

          MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's First Motion to Compel [65] and Defendant State Farm Mutual Automobile Insurance Company's Motion for Time [83]. Having considered the parties' submissions and the applicable law, the Court finds that Plaintiff's Motion to Compel [65] should be granted in part and denied in part and that Defendant's Motion for Time [83] should be granted.

         This case arises from an automobile accident that occurred on September 10, 2015, wherein Plaintiff Joe C. Powelson was involved in a collision with Defendant Anna Brashier. Before filing suit, Plaintiff made claims against Brashier's insurer and also made an underinsured motorist claims against Defendant State Farm Mutual Automobile Insurance Company (“State Farm”). Plaintiff contends that State Farm issued a policy of insurance to Plaintiff's father-in-law, Bobby Ryals, with whom he allegedly resided. Plaintiff asserts that this policy provides coverage to him for the accident because he is a resident relative of the policyholder.

         On April 16, 2018, Plaintiff filed his Complaint against Brashier and State Farm in the Circuit Court of Jones County, Mississippi. On May 23, 2018, State Farm removed the case to this Court. Plaintiff's claims against State Farm include breach of contract, breach of duty of good faith and fair dealing, tortious breach of contract, and bad faith.

         On February 14, 2019, the Court conducted a telephonic conference with Plaintiff and State Farm concerning disputes arising from Plaintiff's requests for production of documents and State Farm's responses to those requests. The parties were unable to resolve all of their disputes. Thus, on March 3, 2019, Plaintiff filed his First Motion to Compel [65], requesting that the Court compel State Farm to produce documents relating to three requests.

Request for Production No. 1: Please produce all documents in Your possession that support State Farm's contention that “Powelson and his father-in-law Bobby Ryals, each had a separate residence at 829 Lower Myrick Road, Laurel, Mississippi, 39443” as stated in Paragraph XII of Your Answer.
Response: Please see the Claim File, Bates Numbers CF 0001-0113 as well as the statements of Bobby Ryals and Lisa Powelson which were previously produced. As discovery is in its infancy, this Response may be supplemented.

         In his Motion [65], Plaintiff asserts that the statements of Bobby Ryals and Lisa Powelson (Plaintiff's wife) have not been produced. According to Plaintiff, State Farm advised him that its response to Request No. 1 was inadvertent and that it did not intend to produce the statements. Plaintiff requests that the Court compel State Farm to produce these statements. In its Response [91], [1] State Farm argues that the statements are attorney work product, as they were taken by Calen Wills, its counsel of record in this action. State Farm also argues that Plaintiff cannot show a need for the statements because Plaintiff deposed both Ryals and Powelson on March 12, 2019.

         The work product doctrine is governed by Fed.R.Civ.P. 26(b)(3). “The work product doctrine does not exist to protect a confidential relationship but to promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of an opponent.” Liberty Mutual Ins. Co. v. Tedford, 644 F.Supp.2d 753, 764 (N.D. Miss. 2009). The work product doctrine only protects materials that were prepared in anticipation of litigation. Fed.R.Civ.P. 26(b)(3). Documents prepared in the ordinary course of business or that would have been created in similar form irrespective of the litigation are not protected as work product.

         “Documents created by the insurer or its representative tend not to be protected by the work product doctrine if they were prepared as a more or less routine investigation of a possible resistible claim.” Kansas City Southern Ry. Co. v. Nichols Const. Co. LLC, 2007 WL 2461014, at *5 (E.D. La. Aug 27, 2007) (citation and internal quotations omitted). Therefore, the key question is when did State Farm shift from merely investigating the claim to anticipating litigation. OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 2013 WL 6002166, at *4 (S.D. Tex. Nov. 12, 2013).

         Often, an insurer begins to anticipate litigation when it denies coverage, but a bright-line rule has not been established in the Fifth Circuit for determining when an insurer anticipates litigation. The United States Court of Appeals for the Fifth Circuit has stated that litigation pertaining to insurance coverage is appropriately anticipated from the date an insurer has a “solid basis to question the . . . insurance claim.” Dunn v. State Farm, 927 F.2d 869, 875 (5th Cir. 1991). “[I]n an insurance dispute, the question of whether the documents are work product often depends on whether the insurer can point to a definite shift from action in its ordinary course of business to action in anticipation of litigation.” OneBeacon, 2013 WL 6002166, at *5 (citation and internal quotations omitted).

         State Farm has the burden of establishing that the information at issue is work product. Hodges, Grant & Kaufman v. U.S., 768 F.2d 719, 721 (5th Cir. 1985). State Farm has not met its burden of establishing that the statements at issue are protected by the work product doctrine. In its Response [91], State Farm simply asserts that the statements are work product obtained by Calen Wills, its counsel of record in this action. State Farm's conclusory statement, however, is not enough to show that the work product doctrine should protect the statements given by Ryals and Lisa Powelson. State Farm does not specify when the statements were taken. State Farm has not pinpointed a definite shift from acting in its ordinary course of business to acting in anticipation of litigation. The Court cannot assume that the statements are work product simply because they were taken by an attorney.[2] Accordingly, State Farm shall produce to Plaintiff the statements it took from Bobby Ryals and Lisa Powelson.

Request for Production No. 6: Please produce State Farm's file(s) regarding the sale and/or underwriting of the Policy.
Response : To the extent this Request seeks information related to “claim files” please see Response to Request for Production Number 4. To the extent this Request seeks any Underwriting information, State Farm objects to this request on the grounds that it is overly broad in time (not limited by any reasonable period), scope (it is not limited by type of policy or insurance coverage) and due to the use of the terms “all” with respect to the broad categories of documents requested. State Farm objects to producing underwriting information on the ground that it seeks information that is neither relevant to the claims or defenses of a party nor proportional to the needs of the case, because there is no dispute that the applicable policy was in effect on the date of loss. Underwriting and application information is stored ...

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