Randal CROSSWHITE, Plaintiff-Appellant v. LEXINGTON INSURANCE COMPANY, Defendant-Appellee.
No. 08-10814
United States Court of Appeals, Fifth Circuit.
April 1, 2009.
365
Summary Calendar.
Fernando Manuel Bustos, McCleskey, Harriger, Brazill & Graf, Lubbock, TX, for Defendant-Appellee.
EDITH BROWN CLEMENT, Circuit Judge:*
This appeal concerns a claim filed by Randal Crosswhite against Lexington Insurance Company (“LIC“) for tortious interference of Crosswhite‘s contract of employment with Rentech Boiler Systems, Inc. (“Rentech“). In short, Crosswhite alleges that LIC improperly influenced Rentech, its insured, to place Crosswhite on unpaid leave—a move that ultimately led to his resignation—because of his confidential position with Rentech and close relation to two individuals (his wife and stepson) who were suing Rentech in a separate case at the time. The district court granted summary judgment to LIC based largely on Crosswhite‘s inability to offer evidence to support his claim. Crosswhite concedes a lack of evidence, but blames it on the district court‘s refusal to require LIC to produce its claims file on the action involving Crosswhite‘s relatives. Given that Crosswhite‘s only challenge on appeal is to this discovery order—as opposed to the existence of any other evidence in his favor—and that such orders are reviewed with deference, we affirm the district court‘s discovery order and entry of judgment for LIC.
FACTS AND PROCEEDINGS
Rentech hired Crosswhite in 2001. During his employ, Crosswhite served as Rentech‘s vice president and chief financial officer. In August 2006, Rentech put Crosswhite on unpaid leave for an indefinite period. Rentech‘s stated reason was a conflict of interest because Crosswhite held a job with access to Rentech‘s sensitive financial information while his stepson, Preston Teel, and his wife, Lesa Crosswhite, were suing Rentech in a separate lawsuit. The relatives’ action involved a serious work accident in 2005 involving Teel, who also worked for Rentech. It was first filed in February 2006, sought at least $10 million in relief, and was pending at all relevant times. In January 2007, Crosswhite and Rentech entered into an agreement that permanently terminated Crosswhite‘s employment and exchanged a lump sum severance payment for a release. The release did not include LIC.
In April 2007, Crosswhite filed this action against LIC in state court. LIC promptly removed. In his complaint, Crosswhite alleges that LIC, which insured Rentech at various times, arranged to have Crosswhite put on unpaid leave in August 2006 to induce his wife and/or stepson to drop their action. Crosswhite claims that LIC‘s actions constituted tortious interference with his employment contract and that LIC was therefore responsible for his August 2006 leave and termination five months later.
After a period of discovery, LIC filed a motion for summary judgment. LIC asserted that Crosswhite‘s claim fails because: 1) there was no evidence of willful or intentional interference, 2) LIC denied indemnity to Rentech on the relatives’ action and withdrew defense coverage in that case months before Rentech put Crosswhite on leave, and 3) there was no admissible evidence that LIC‘s conduct caused damage to Crosswhite given his negotiated severance agreement, or that Crosswhite was damaged in light of that agreement. In a two-page response to LIC‘s motion, Crosswhite offered no evidence, but simply professed an inability to respond in light of
The district court granted LIC‘s motion for summary judgment on July 28, 2008. The district court found that “[b]y [Crosswhite‘s] failing to come forward with even so much as an affidavit or citations to his own deposition in an effort to create a genuine issue of material fact, [LIC]‘s evidence and arguments go without rebuttal.” As to the claims file in his wife and stepson‘s case, on May 20, 2008, the court denied Crosswhite‘s motion to compel and granted LIC‘s motion for a protective order covering that file and related information on a declaratory judgment action for insurance coverage of the relatives’ case. The court‘s May 20, 2008 order did not detail its reasoning, only that it “consid-er[ed] all relevant arguments and evidence.” The district court did, however, make an exception for information not “protected by legal privileges” “to the extent it concerns . . . Crosswhite‘s employment issues with [Rentech].” In seeking protection of non-employment information from the collateral actions, LIC had argued that the materials were covered by the work-product doctrine or attorney-client privilege, and, in support, provided a detailed privilege log. As to good cause in support of the protective order, LIC cited the unfair advantage Crosswhite‘s relatives would gain and the prejudice LIC would suffer in the then-pending actions. For his part, Crosswhite argued that the information sought was “necessary” for him to prepare his case because his “claims relate directly to conduct engaged in by [LIC] in connection with the defense” of the relatives’ action.
On appeal, Crosswhite does not actually appeal the district court‘s grant of summary judgment. Rather, his sole point of error is that “[t]he trial court erred in not requiring [LIC] to produce its claims file in the state court litigation involving Lesa Crosswhite and Preston Teel.”
STANDARD OF REVIEW
This court reviews grants of summary judgment de novo. Ford Motor Co. v. Tex. Dep‘t of Transp., 264 F.3d 493, 498 (5th Cir.2001). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Notwithstanding its de novo review of summary judgment on the whole, this court reviews discovery orders for abuse of discretion—a fact both parties concede. “The district court has broad discretion in discovery matters and its rulings will be reversed only on an abuse of that discretion.” Scott v. Monsanto Co., 868 F.2d 786, 793 (5th Cir.1989). Because the only ground raised on appeal by Crosswhite concerns the district court‘s refusal to allow discovery of certain collateral case information, we review this appeal for abuse of discretion. See Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir.1982) (reviewing protective order under abuse of discretion standard). Crosswhite concedes judgment in the absence of the information at hand, while remand—and not reversal and entry
DISCUSSION
The Federal Rules of Civil Procedure provide, “[u]nless otherwise limited by court order, . . . [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party‘s claim or defense. . . .”
Based on our review of the privilege log, there appear to be three different sets of materials at issue. The first consists of documents dated from January 2001 to September 2004, which largely concern claims investigator “evidence.” The second set consists of documents dated from June 2005 to October 2005, which concern coverage of a “claim“; the injury to Crosswhite‘s stepson that gave rise to the collateral legal action occurred on June 3, 2005. The third set consists of documents dated February 2006 to November 2007, which concern the “case” and its underlying claim; the relatives’ action was first filed on February 6, 2006.
Turning to the first set of materials—i.e., from January 2001 to September 2004—their nature is unclear. They do not seem to concern the relatives’ action in any direct sense, particularly given that they pre-date Teel‘s injury. It appears unlikely that they would be considered part of the relatives’ “claims file“—i.e., the target of the motion to compel and protective order—in any event. Nevertheless, because neither party briefed the question, either on appeal or in the district court, we decline to address the issue here. See
As to the second and third sets of materials in the log—i.e., from June 2005 to October 2005 and February 2006 to November 2007—these are coverage and
In sum, because of the prospect of undue advantage involved and the fact that relevant, non-privileged, employment-related materials were still fair game, we conclude that the district court did not abuse its discretion in denying the motion to compel and issuing the protective order.
CONCLUSION
For the reasons stated above, we AFFIRM the district court‘s discovery order and grant of summary judgment to LIC.