United States District Court, S.D. Mississippi, Eastern Division
JOE C. POWELSON PLAINTIFF
ANNA BRASHIER and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY DEFENDANTS
MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's First Motion to
Compel  and Defendant State Farm Mutual Automobile
Insurance Company's Motion for Time . Having
considered the parties' submissions and the applicable
law, the Court finds that Plaintiff's Motion to Compel
 should be granted in part and denied in part and that
Defendant's Motion for Time  should be granted.
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
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.
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 , 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
Motion , 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 ,  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.
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.
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).
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).
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 , 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. Accordingly, State Farm shall produce to
Plaintiff the statements it took from Bobby Ryals and Lisa
Request for Production No. 6:
Please produce State Farm's file(s) regarding the sale
and/or underwriting of the Policy.
: 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 ...