157 F.R.D. 691 | D. Nev. | 1994
ORDER
The matters before the undersigned Magistrate Judge include motions submitted by both parties, as well as a non-party, regarding the discovery of substantially identical information. The court has reviewed the non-party Motion of Western General Agency to Quash Subpoena and Objections (# 32), Diamond State’s Joinder in Motion to Quash Subpoena and Objections (# 35), Rebel Oil’s Opposition to Motion to Quash Subpoena and Objections and Countermotion to Compel Production of Documents (# 37), and Rebel Oil’s Motion for Order Compelling Discovery (# 40).
BACKGROUND
On March 29, 1993, Plaintiff, Diamond State Insurance Company (“Diamond State”) issued a commercial liability insurance policy to Defendant, Rebel Oil Company, Inc. (“Rebel Oil”). Diamond State issued this policy through its agent, Western General Agency (“Western General”). Rebel Oil also negotiated this policy through its agent, Sedgwick James. Thereafter, Diamond State issued a midterm “Cancellation Notice” alleging that Rebel Oil had made material misrepresentations in securing the policy.
Diamond State subsequently filed a complaint against Rebel Oil alleging fraud and
On November 11, 1993, Rebel Oil served its First Set of Interrogatories and Request for Production of Documents on Diamond State. Diamond State objected to three of the requests for production of documents, as set forth below:
REQUEST NO. 12. All documents received from or sent to anyone at Western General Agency from Diamond State in any way relating to Rebel Oil Company, Sedgwick James or Diamond State Policy number SMP 423882.
ANSWER TO REQUEST NO. 12. OBJECTION the request is duplicative, overly broad, unduly burdensome, and not reasonably calculated to lead to admissible evidence. Further, the requests calls for information produced in anticipation of litigation and protected by the work product doctrine and/or attorney-client privilege. REQUEST NO. 13. Any and all agreements between Western General and Diamond State Insurance Company. ANSWER TO REQUEST NO. 13. OBJECTION the request is duplicative, overly broad, unduly burdensome, and not reasonably calculated to lead to admissible evidence. Without waiving the objection as to any other agreement that may exist see D00503-00540 for the underwriting agreement.
REQUEST NO. 14. Any and all documents sent to or received from Western General by Diamond State that contain communications/information regarding Diamond State Insurance Company’s policies and protocols of underwriting of insurance policies and binding coverage.
ANSWER TO REQUEST NO. 14. OBJECTION the request is duplicative, overly broad, unduly burdensome, and not reasonably calculated to lead to admissible evidence.
Plaintiffs Answers to Interrogatories at 18-19, attached as Exhibit E to Rebel Oil’s Motion to Compel (#40). With respect to Request No. 12, Diamond State provided Rebel Oil with a “privilege log” indicating the documents Diamond State considered to be privileged. Motion to Compel (# 40), Exhibit F.
On June 24,1994, Rebel Oil served subpoenas upon Western General’s Las Vegas, Nevada, and Salt Lake City, Utah, offices. These subpoenas demanded the production of documents that were substantially similar to those which Rebel Oil had previously demanded from Diamond State. Specifically, the subpoenas demanded the production of:
Western General’s entire file regarding Rebel Oil including but not limited to any and all documents Western General Agency sent to Diamond State Insurance Company or which Western General received from Diamond State Insurance Company in any way relating to Rebel Oil and/or Diamond State Policy Number SMP 42382, any and all documents which Western General received from, Absolute Insurance Agency, Steven Lemond, Steve Jones, American Insurance and Investment Corporation and/or Reliance Insurance Company which relate to Rebel Oil Company.
Any and all agreements between Western General Agency and Diamond State Insurance Company that contain communication regarding Diamond State Insurance Company’s policies and protocols of underwriting of insurance policies and binding coverage.
On July 11,1994, Western General filed its Motion to Quash Subpoena and Objections (#32), arguing that Rebel Oil’s subpoenas were overly broad, burdensome, duplicative and that they required the disclosure of privileged and confidential information. On July 25, 1994, Diamond State filed its Motion in Joinder to Quash Subpoenas and Objections (#35), also arguing that the subpoenas requested documents which contained privileged information and that the subpoenas were overly broad and ambiguous. Diamond State also suggested that the subpoenaed documents be reviewed in camera to deter
On July 26,1994, Rebel Oil filed its opposition and countermotion to Western General’s Motion (# 32), arguing that no justifiable basis existed for quashing the subpoenas. On July 28, 1994, Rebel Oil also filed a separate motion to compel the discovery of Diamond State (# 40). Diamond State did not file a memorandum in opposition to this discovery motion.
DISCUSSION
This court must address the. separate discovery motions with regard to: I) Western General, and II) Diamond State.
I. DISCOVERY OF WESTERN GENERAL’S DOCUMENTS
The issues before the court with regard to the subpoenas served upon Western General are: 1) whether the subpoenas are vague, overly broad and ambiguous; 2) whether enforcement of the subpoenas would be duplica-tive and would impose an undue burden and expense upon Western General; 3) whether some of the subpoenaed documents are privileged or otherwise protected from discovery; and 4) whether an in camera review of the disputed documents is appropriate.
A. VAGUE, OVERLY BROAD AND AMBIGUOUS
A subpoena is sufficiently limited and specific in its directive where compliance to its terms would not be unreasonably burdensome. United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir.1976). The court must use its discretion to determine whether this standard has been satisfied. See United States v. George, 883 F.2d 1407, 1418 (9th Cir.1989) (Court’s discretion to quash subpoena). If a subpoena is overly broad and burdensome, the court may, on its own initiative, modify the language in order to correct the ambiguity and prevent the undue burden. Westside Ford v. United States, 206 F.2d 627, 635 (9th Cir.1953), citing Hagen v. Porter, 156 F.2d 362, 366 (9th Cir.1946), cert. denied 329 U.S. 729, 67 S.Ct. 85, 91 L.Ed. 631 (1946); Fed.R.Civ.P. 45(c)(3)(A)(iv).
Western General argues that the scope of the subpoenas is vague and ambiguous and that compliance would therefore be oppressive and burdensome. Yet, Western General fails to identify any specific language in the subpoenas to support this contention. The court will not speculate as to which portion of the subpoenas Western General considers vague.
Diamond State argues that the subpoenas are vague and overly broad as a result of the subpoenas’ demand for the production of “all agreements” between Western General and Diamond State. Specifically, Diamond State argues that the term “all agreements” is vague and would require Western General “to guess” as to its meaning and scope. Diamond State asserts that this is an inappropriate burden to place on the non-party, Western General.
Because Diamond State was not the recipient of the subpoenas, it has standing to challenge them only where its challenge asserts that the information is privileged or protected to itself. See Jerry T. O’Brien, Inc. v. Securities and Exchange Commission, 704 F.2d 1065, 1068 (9th Cir. 1983), rev’d on other grounds, 467 U.S. 735, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984), citing Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 538, 27 L.Ed.2d 580 (1971). Diamond State’s challenge of vagueness is raised only to prevent Western General from “guessing” as to what constitutes an agreement under the scope of the subpoenas. This challenge is not raised to protect information that is privileged to Diamond State. Diamond State, therefore, does not have standing to challenge the subpoena on the grounds of vagueness.
Nevertheless, this court recognizes that the term “all agreements” could be vague and ambiguous and that compliance thereto may be burdensome. This request effectively requires that Western General determine the intent of Diamond State with regard to any perceived agreements between
The court finds the subpoenas to be otherwise sufficiently limited and specific in directive. The subpoenas specifically request the production of all documents relating to Rebel Oil’s insurance policy transaction with Western General and Diamond State. The request is proper and not unduly broad. See e.g. Mines and Metals Corp. v. Securities and Exchange Commission, 200 F.2d 317, 321 (9th Cir.1952), cert. denied 345 U.S. 941, 73 S.Ct. 832, 97 L.Ed. 1367 (1953) (subpoena of records relating to transaction approved).
B. DUPLICATIVE; UNDUE BURDEN AND EXPENSE
The court will quash or modify a subpoena which subjects a person to undue burden. Fed.R.Civ.P. 45(c)(3)(A)(iv). The court has broad discretion in determining whether discovery is burdensome and oppressive. See e.g. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988). The court may also make any order which justice requires to protect a party or person from undue burden, oppression or expense. United States v. Columbia Broadcasting System, Inc., 666 F.2d 364, 369 (9th Cir.), cert. denied 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1329 (1982).
Western General submits three arguments claiming that compliance with the subpoenas would be duplicative, burdensome and expensive. First, Western General claims that production of Diamond State’s underwriting guidelines and policies would “require an individualized search of numerous insurance client’s files as there is no single book or series of documents which would satisfy this inquiry.” Motion to Quash (# 32), at 4. No affidavit or other evidence is submitted in support of this allegation.
This generalized and unsupported allegation of undue burden is not sufficient to prevent enforcement of the subpoenas. See Doyle v. F.B.I., 722 F.2d 554, 555 (9th Cir. 1983). Moreover, absent a clearer explanation in support of this assertion, the Court finds little credibility in this claim. It is difficult to comprehend that the underwriting guidelines and policies of Diamond State— which guidelines Western General must follow as an agent of Diamond State—are not readily accessible to Western General but, rather, are scattered throughout the files of various clients. The court therefore finds this argument to be meritless.
Second, Western General claims that “the task of providing full information in response” to the subpoenas would be burdensome because it would require legal counsel to gather, identify and examine the requested documents as to privilege or work product protection. Yet, in a somewhat contradictory statement, Western General has asserted that it has already identified and gathered the subpoenaed documents and has sent them to Diamond State’s legal counsel. Western General submitted privilege and document logs which confirm that the documents have been reviewed for applicable privileges. See Motion to Quash (# 32), Exhibits C and D. Western General’s admission, that the subpoenaed documents have already been identified and gathered, casts doubt on its claim that compliance with the subpoenas would be burdensome. This claim is not supported by the evidence.
Third, Western General asserts that the subpoenas are duplicative, improper and an abuse of the process of the court. Specifically, Western General asserts that the subpoenas demand the production of the identical documents that Diamond State has previously been requested to produce in response to Rebel Oil’s Request for Production of Documents. Western General has also asserted that it has sent the subpoenaed documents to Diamond State’s legal counsel and that Diamond State, in turn, has provided some of these documents to Rebel Oil.
Both the subpoenas issued to Western General and the Request for Production of Documents issued to Diamond State demand, in part, the same documents. Both require production of: 1) all documents sent or received between Western General and Diamond State which relate to Rebel Oil or Diamond State Policy No. SMP 42382; 2) all agreements between Western General and Diamond State; and 3) all documents sent or received between Western General and Diamond State which contain information regarding Diamond State’s policies and protocols of underwriting insurance policies and binding coverage. However, the subpoenas issued to Western General demand the production of the following additional documents which are not included in the discovery request served upon Diamond State: 1) Western General’s entire file regarding Rebel Oil; and 2) all documents received from Absolute Insurance Agency, Steven Lemond, Steve Jones, American Insurance and Investment Corporation and/or Reliance Insurance Company which relate to Rebel Oil.
The court may limit discovery where the documentation sought is unreasonably cumulative or duplicative. Shoen v. Shoen, 5 F.3d 1289, 1299 (9th Cir.1993) (concurring opinion), citing Fed.R.Civ.P. 26. The court recognizes the apparent duplication of portions of the separate discovery requests served upon Western General and Diamond State. However, although they are duplicative in part, the discovery requests have been directed toward two separate business entities (i.e. Western General and Diamond State) and the documents actually maintained in the files of each entity may not be identical. This possibility is particularly evident after considering Western General’s description of the manner in which underwriting guidelines have been filed.
Therefore, to ensure full discovery of the subpoenaed documents and, at the same time, limit the unnecessary production of identical information by a non-party, the court will not order Western General to produce any of the subpoenaed documents which have already been sent to Diamond State. Rather, the court will require Diamond State to produce these subpoenaed documents. Western General must submit to Rebel Oil a log identifying all documents previously transmitted to Diamond State. Western General will be required to produce any subpoenaed documents which have not been provided to Diamond State.
C. PRIVILEGED AND PROTECTED DOCUMENTS
Western General and Diamond State assert that the subpoenas should be quashed because they demand the disclosure of: i) confidential commercial information of other clients; ii) privileged attorney-client information; and iii) protected work-product information.
1. Confidential Commercial Information of Other Clients
The court may limit or quash a subpoena which requires the disclosure of confidential commercial information. Fed. R.Civ.P. 45(e)(3)(B)(i); see also Columbia Broadcasting System, Inc., 666 F.2d at 368. Confidential commercial information is information which, if disclosed, would cause substantial economic harm to the competitive position of the entity from whom the information was obtained. See e.g. Allnet Communication Services, Inc. v. Federal Communications Commission, 800 F.Supp. 984, 988 (D.D.C.1992); Zenith Radio Corp. v. Matsuchita Elec. Indus. Co., 529 F.Supp. 866, 889-91 (E.D.Pa.1981).
The person asserting confidentiality has the burden of showing that the privilege applies to a given set of documents. Fed. R.Civ.P. 45(d); see also In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992) (party asserting privilege has burden of proof). The claim must be expressly made and supported by a sufficient description of
Western General argues that disclosure of the underwriting policies and protocols of Diamond State would require the disclosure of private, confidential commercial material found in other clients’ files. This claim is unsubstantiated. Western General provides no reasonable explanation why Diamond State’s underwriting policies could only be found in the files of various other clients. Western General also fails to adequately describe the nature of the alleged confidential information so that Rebel Oil can contest this claim. A generalized, self-serving, conelusory assertion of protection or privilege is without merit. See Doyle, 722 F.2d at 555.
2. Privileged Attorney-Client Information
The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures. In re Grand Jury Investigation, 974 F.2d at 1070, citing In re Grand Jury Subpoenas (Hirsch), 803 F.2d 493, 496 (9th Cir.1986), connection printed 817 F.2d 64 (9th Cir.1987); In re Fischel, 557 F.2d 209, 211 (9th Cir.1977). “[T]he privilege is limited to ‘only those disclosures—necessary to obtain informed legal advice—which might not have been made absent the privilege.’ ” In re Grand Jury Investigation, 974 F.2d at 1070, citing Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976).
“[T]he party asserting the privilege has the burden of making a prima facie showing that the privilege protects the information that the party intends to withhold.” In re Grand Jury Investigation, 974 F.2d at 1070. This burden is met by demonstrating that the documents adhere to the essential elements of the attorney-client privilege. Id., citing Fischel, 557 F.2d at 211.
Western General and Diamond State assert that compliance with the subpoenas will require the disclosure of privileged attorney-client information. Yet, only general conclu-sory allegations are offered in support of this claim. Western General and Diamond State have submitted a privilege log. However, it fails to meet the established requirements. Western General and Diamond State have therefore failed to establish an attorney-client privilege with regard to the requested documents.
3. Work Product Protection
The work-product rule is not a privilege but an immunity protecting, from discovery, documents and tangible things prepared by a party or its representative in anticipation of litigation. Fed.R.Civ.P.
Application of the work product rule is addressed to the sound discretion of the court (In re Sealed Case, 676 F.2d 793, 813 (D.C.Cir.1982) but is often difficult. McFadden v. Norton Company, 118 F.R.D. 625, 628 (D.Neb.1988). The courts have not found a “neat general formula” to determine whether documents were prepared in anticipation of litigation. United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.1981), citing Kent Corp. v. N.L.R.B., 530 F.2d 612, 623 (5th Cir.1976), cert. denied 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976), In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3d Cir.1979). Determining the driving force behind the preparation of each requested document is required in resolving a work product immunity question. Murray Sheet Metal, 967 F.2d at 984.
The party asserting the work-product rule has the burden of establishing, for each document, the rule’s application. Fed. R.Civ.P. 45(d)(2); Conoco Inc. v. United States Dept, of Justice, 687 F.2d 724, 728 (3rd Cir.1982) (FOIA case). This burden is met by submitting detailed affidavits sufficient to show that precise facts exist to support the immunity claim. Harvey’s Wagon Wheel, Inc. v. N.L.R.B., 550 F.2d 1139, 1141 (9th Cir.1976) (FOIA case); Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, a Division of Equifax Services, Inc., 120 F.R.D. 504 (W.D.La.1988). The asserting party will usually also provide a privilege log describing the documents it claims to be protected. This log alone, however, is often inadequate to conduct the necessary analysis. See Murray Sheet Metal Company, Inc., 967 F.2d at 985 (record consisting mainly of privilege log inadequate).
Western General and Diamond State assert that compliance with the subpoenas will require the disclosure of documents protected by the work-product rule. Yet, these assertions are merely set forth in self-serving conclusory statements. Although Western General and Diamond State provide a privilege log, it only provides a vague description of the documents. No affidavits have been submitted substantiating the work product claim.
The record is insufficient to find application of the work product immunity. The privilege log fails to provide adequate information for the court to make a sound determination that the documents were prepared in anticipation of litigation. The log indicates that eight of the eleven documents were prepared prior to August 13,1993, the date that Western General and Diamond State retained Leverty and Associates as legal counsel. While work product documents may, in some cases, be prepared prior to litigation (Schmidt, 127 F.R.D. at 184 n. 3) the fact that eight of the eleven documents were prepared prior to obtaining legal counsel casts substantial doubt on the work product claim. See Murray Sheet Metal Company, 967 F.2d at 985 (serious doubts where documents prepared prior to contacting counsel).
The court is put in the untenable position of having to speculate in order to find application of work product protection. The court
D. IN CAMERA REVIEW
Western General and Diamond State suggest that an in camera review would be appropriate to determine whether the asserted privilege and protections apply.
In camera review is generally disfavored.
Neither Western General nor Diamond State has fulfilled its obligation to justify the withholding of the requested documents. Neither has submitted the required affidavits or other sufficient evidence supporting its claim of privilege and protection. Neither filed a reply to Rebel Oil’s Opposition (# 37). Under these circumstances, granting an in camera review would be paramount to permitting Western General and Diamond State to shirk their duty of justifying the withholding of the documents. In camera review is therefore inappropriate.
II. DISCOVERY OF DIAMOND STATE’S DOCUMENTS
In a motion separate from its countermotion to compel Western General’s compliance with the subpoenas, Rebel Oil has moved the court to compel Diamond State to produce the documents requested in its previous request for the production of documents. Diamond State, itself, has argued that Rebel Oil should file this motion in order to provide a “setting” wherein both parties could “fully address” the discovery issues. Joinder in Motion to Quash (# 35), at 8. Diamond State, however, has failed to provide an argument, other than those contained in its Join-der in Motion to Quash, in opposition to Rebel Oil’s discovery motion.
The court need not engage in a lengthy discussion with regard to Rebel Oil’s motion. The documents requested from Diamond State are essentially identical to those requested from Western General. Diamond State has presented insufficient evidence to establish application of the attorney-client privilege or the work product immunity with regard to these documents. Moreover, Diamond State’s claim of vagueness has been adequately addressed by the court so as to
ORDER
Based on the foregoing, and good cause appearing therefore,
IT IS HEREBY ORDERED that Western General’s Motion to Quash Subpoena and Objections (#32), Diamond State’s Joinder in Motion to Quash Subpoena and Objections (# 35), and Rebel Oil’s Opposition to Motion to Quash Subpoena and Objections and Countermotion to Compel Production of Documents (# 37) are granted in part and denied in part. The subpoenas shall be modified as instructed herein. Western General shall submit to Rebel Oil a log identifying all documents that it has previously transmitted to Diamond State. Western General shall produce all subpoenaed documents not previously provided to Rebel Oil or Diamond State.
IT IS FURTHER ORDERED that Rebel Oil’s Motion for Order to Compel Discovery (# 40) is granted. Document Request No. 13 is modified as instructed herein. Diamond State shall produce all requested documents to Rebel Oil, including those subpoenaed documents previously provided to it by Western General.
. The attorney-client privilege may be divided into eight elements: "(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the protection be waived.” In re Grand Jury Investigation, 974 F.2d at 1071, n. 2, citing Fischel, 557 F.2d at 211 (quoting 8 John H. Wigmore, Evidence § 2292, at 554 (McNaughton rev. 1961)).
. Although the "privilege log” approach is generally used to establish the attorney-client privilege, the Ninth Circuit has indicated that other methods may be used to establish the privilege. In re Grand Juiy Investigation, 974 F.2d at 1071. Regardless of the method used, a prima facie showing must be made of the existence of the attorney-client privilege. See Id.
. The United States Supreme Court has held that a district court may, in appropriate circumstances, conduct in camera review of documents. United States v. Zolin, 491 U.S. 554, 571-72, 109 S.Ct. 2619, 2630-31, 105 L.Ed.2d 469 (1989) (discussing crime-fraud exception to attorney-client privilege). The Court held that a district court should not conduct in camera review solely because a party begs it to do so. Id. at 571, 109 S.Ct. at 2630. Rather, there must first be a sufficient evidentiary showing creating a legitimate issue as to application of the privilege or protection asserted. See Id. The court then must use its sound discretion to determine whether in camera review is appropriate under the facts arid circumstances of the particular case. Id.
. Rule 140-6 of the Local Rules of Practice for the United States District Court, District of Nevada, states that "the failure of an opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion.” Although Diamond State has not filed a memorandum in opposition to this particular discovery motion, the court recognizes that Diamond State’s Joinder in Motion to Quash (#35) provides points and authorities in opposition to the disclosure of the documents that are requested in this discovery motion. Therefore, the court's ruling is based upon a review of the substantive arguments presented by the parties, rather than on Local Rule 140-6.
