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Lott v. Axa Equitable Life Insurance Co.

United States District Court, N.D. Mississippi, Aberdeen Division

June 20, 2019

DUNCAN LOTT PLAINTIFF
v.
AXA EQUITABLE LIFE INSURANCE COMPANY and DISABILITY MANAGEMENT SERVICES, INC. DEFENDANTS

          ORDER GRANTING DEFENDANTS' MOTION TO COMPEL AND DENYING MOTIONS TO QUASH

          DAVID A. SANDERS UNITED STATES MAGISTRATE JUDGE

         Motion to Compel

         Before the court is Defendants' Motion to Compel [71], which seeks the compelled production of Plaintiff's business and financial records in response to their Second Set of Request[s] for Production of Documents. As to each request at issue:

         Request No. 23 seeks a “Matters Opened Summary Report” for Langston & Lott, P.A. from 2010 to present, displaying client name, matter name/description, file number, name of responsible/assigned lawyer, and date each file was opened.

         Request No. 24 seeks a “Closed Files Report” for Langston & Lott, P.A. from 2010 to present, displaying client name, matter name/description, file number, name of the responsible/assigned attorney, file open date, and date each file was closed/inactivated/archived.

         The parties make the same arguments regarding Requests 23 and 24, and the Court likewise applies the same analysis.

         Plaintiff objected on the grounds of relevancy and to the production of any documents past the cutoff of benefits in May 2017. However, in his response to the motion to compel, Plaintiff only raised the issue of relevance. Nevertheless, Plaintiff represents he “provided the information to satisfy the Request.” As to the relevance issue-which is Plaintiff's primary objection to the bulk of the requests at issue as well as multiple motions to quash which will also be addressed in this order-the parties dispute whether Plaintiff's profession was that of an attorney or a specialized trial attorney. Plaintiff's occupational disability policy hinges on whether he can perform the “substantial and material” aspects of his profession. If Plaintiff's profession is “trial attorney, ” he contends any continuing work as a general practice attorney is irrelevant. However, Defendants assert Plaintiff was a general practice attorney who has continued to perform those duties. Thus, this case revolves around a determination of Plaintiff's regular occupation, the substantial and material duties of said occupation, and which of those duties, if any, Plaintiff became unable to perform as a result of his claimed disability (and if found to be partially disabled, whether he experienced a qualifying loss of income). See House v. Am. United Life Ins. Co., 499 F.3d 443, 453-55 (5th Cir. 2007).

         The Court therefore finds that information relating to Plaintiff's occupational duties without limitation to work as a “trial attorney”-before, during, and after cessation of benefits- is relevant and discoverable. As to Plaintiff's objection that the request is not limited to Plaintiff but to the firm as a whole, Plaintiff owns a fifty-percent interest in the firm, and the policy at issue grants to Defendants the right to “examine [his] business and personal financial records . . . as often as [they] reasonably require to determine [his] [e]arnings.” The Court notes that Plaintiff represents he provided the information requested in spite of his objections. If Plaintiff discovers additional responsive documents, he is hereby ordered to supplement.

         Request No. 25 seeks a report for Langston & Lott, P.A. displaying in chronological order all matters/cases/files for which Duncan Lott was designated as the Client Intro Lawyer, Fee Credit Lawyer, Responsible Lawyer, and/or Assigned Lawyer which were opened from 2008 to present, and including the date opened, description, and close date, if any.

         The only distinguishing feature of this request is that it is limited to Plaintiff. The parties otherwise employ essentially the same arguments, and the Court's analysis equally applies. Plaintiff's objections are overruled.

         Request No. 26 seeks a Collection Summary Report from 2010 to present providing a chronological monthly/yearly analysis of payments received by Langston & Lott, P.A. displaying date of collection, fee/payment amount, name of fee credited lawyer, name of responsible lawyer (if different), client name, and matter number.

         Plaintiff again objects based on relevancy and breadth, which the Court overrules for the reasons already discussed. However, as to this request, Plaintiff also asserts that the requested information is privileged. The entirety of his privilege argument is that “the information is confidential and privileged” and “invades the province of the attorney-client privilege in seeking confidential information involving client files.” “The identity of a client is not normally within the attorney-client privilege, nor are matters involving the receipt of fees from a client usually privileged.” Auto Parts Mfg. Miss. Inc. v. King Constr. of Houston, LLC, 2017 WL 1233901 at *2 (N.D. Miss. Apr. 3, 2017) (citing In re Grand Jury Proceedings, 517 F.2d 666, 670-71 (5th Cir. 1975)). A client's motive for retaining an attorney is privileged, as are “invoices revealing the nature of the services provided, including the areas of legal research and strategy.” Id. The Court finds that Request 26 seeks only client identity and fee information. Plaintiff's objections as to privilege are overruled.

         Request No. 28 seeks a Purchases Journal Report/Payment Listing Report for the categories of Expenses named “Consulting Fees” and “Advertising Fees” providing an itemized breakdown of the total amount of each category for each year from 2010 to present displaying vendor/payee name, invoice date, matter number, payment amount and date, and explanation.

         Plaintiff again argues the requested documents are irrelevant because whether he continued to work as an attorney has no bearing on whether he continued to work as a trial attorney. However, as already discussed, Plaintiff's profession at the time of his claimed disability is at issue as is the impact, if any, of that disability. For the reasons already discussed, Plaintiff's objections are overruled.

         Request No. 30 seeks copies of agreements between Langston & Lott, P.A., with Faegre Baker Daniels, LLP, Stephen S. Kreller, and/or the Kreller Law Firm regarding or pertaining in any way to the handling of or representation of claimants/plaintiffs in ...


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