ORDER ON PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS
This matter is before the Court on Plaintiffs Motion to Compel Production of Documents and Incorporated Memorandum of Law (“Plaintiffs Motion”) [D.E. 21 — l].
The pending Motion is ripe for disposition. After carefully considering the parties’ arguments, as well as the court file, and for the reasons that follow, this Court hereby orders that Plaintiffs Motion be GRANTED IN PART and DENIED IN PART.
Rule 26(b) of the Federal Rules of Civil Procedure defines the scope of discovery as including “any matter, not privileged, that is relevant to the claim or defense of any party.” Courts must employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules, even after the 2000 Amendments to the Rule. McMahon v. Eastern Steamship Lines, Inc.,
Before addressing the individual document requests, we first review the general principles governing the Defendant’s discovery objections raised in this matter.
A. Failure to Confer with Opposing Counsel
Prior to filing a motion to compel, Federal Rule of Civil Procedure 37(a)(2)(B) and the local rules of the Southern District require the movant to try to confer with opposing counsel and make efforts to secure requested information without court assistance. We find that Plaintiffs efforts to resolve this discovery dispute were materially sufficient. See Exhibit A [D.E. 27-2], Therefore, we will address the merits of the issues raised.
B. Overbroad Request
Objections which state that a discovery request is “vague, overly broad, or unduly burdensome” are, by themselves, meaningless, and are deemed without merit by this Court. A party properly objecting on these bases must explain the specific and particular ways in which a request is vague, overly broad, or unduly burdensome. See Fed.R.Civ.P. 33(b)(4); Josephs v. Harris Corp.,
Defendant complains that the Plaintiffs discovery requests are overbroad. Although Defendant fails to substantiate this objection to any meaningful degree, a review of Plaintiffs discovery requests lends some merit to Defendant’s argument (i.e. “All communications of any type sent to, or received from, State Farm, its agents, employees, and/or representatives regarding Cox’s claim.”). Additionally, Plaintiffs requests may seek proprietary and irrelevant information, such as any internally used policy manuals.
This objection, however, is moot, as the only documents Defendant withheld from production are those listed in the Privilege Log. To the extent Plaintiffs Motion seeks documents listed in the Privilege Log, we will address those requests below.
C. Relevance
Information requested via discovery is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26(b)(1); Fed.R.Evid. 401; Oppenheimer Fund, Inc. v. Sanders,
A recent decision in the Southern District of Florida addressed the relevancy of certain discovery requests in the context of a first-party action against an insurer for breach of contract. See, e.g., Atrium on the Ocean II Condo. Ass’n v. QBE Ins. Corp., No. 06-14326-CV-Graham-Lynch,
The Motion concerns Request No. 4 for “[a]ll documents relating to the investigation, processing, and analysis of Plaintiffs insurance claims” as well as Requests No. 7 and 8 for “[a]ny document relied upon, or which form any basis, for QBE’s assertion that certain of Atrium’s claims are uncom-pensable as ‘overcharges’ ... or due to ‘mold exclusions’ ... including, but not limited to, schedules of industry standards, similar uncompensable claims relied upon by QBE, accountings, valuation charts or memoranda or any written recommendations.”
See id. (citing Mag. J. Lynch’s August 16, 2007 Order that was appealed to District Judge Graham). Judge Graham, in affirming the Magistrate Judge’s ruling, held that the aforementioned documents in the claims file were relevant and discoverable in plaintiffs breach of contract action.
For similar reasons, we also find that documents related to the “investigation, processing, analysis” and ultimate denial of Plaintiffs claim are relevant to the extent they relate to Plaintiffs breach of contract claim.
D. Attorney-Client Privilege
Florida law governs application of the attorney-client privilege in a federal diversity action. Bradt v. Smith,
Unlike a claim of attorney-client privilege made by an individual, a claim of privilege raised by a corporation is subject to a “heightened level of scrutiny.” Id. at 1383. To establish that communications are protected by the attorney-client privilege, Defendants must demonstrate that the documents satisfy the following requirements:
(1) the communication would not have been made but for the contemplation of legal service;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
(4) the content of the communication re- . lates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;
(5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
Id.
In an insurance context, the attorney-client privilege only attaches when an attorney performs acts for an insurer in his processional capacity an in anticipation of litigation. See, e.g., Bankers Ins. Co. v. Florida Dept. of Ins.,
As detailed in the Privilege Log, Defendant is withholding the following communications: (1) communications between Cari Sanchez, State Farm’s claim representative who handled the underlying claim on behalf of State Farm, and Christopher Eseo, Esq., and Luis Ordonez, Esq., attorneys for State Farm and Sanchez, regarding Plaintiffs lawsuit against State Farm’s insured, subpoenas served on State Farm in that lawsuit, and Sanchez’ deposition in that lawsuit; and (2) communications between State Farm employees regarding conversations with State Farm’s attorney, Luis Ordonez, Seq., concerning Plaintiffs bad faith claim against State Farm. See Privilege Log [D.E. 27-7]. At first blush, these communications appear to fall within the purview of the attorney-client privilege.
But Plaintiff argues, on the other hand, that the claim file was not created “but for” the contemplation of legal services, but rather as part of the insurer’s standard investigation of the claim. See Bankers,
The record at this stage shows, however, that on November 20, 2001, Defendant received a letter requesting liability coverage information for its insured, which stated, “If we do not hear from you within thirty (30) days from the date hereof, we will put this matter in suit.” See November 20, 2001 letter from Charles Flaxman, Esq. to State Farm [D.E. 27-6]. Then, on May 28, 2002, Defendant expressly denied the coverage claim. See May 28, 2002 letter from Cari Sanchez to Charles Flaxman, Esq. [D.E. 27-4].
Based on this record, we find that, at the very least, the attorney-client privilege shields discovery of documents dated after May 28, 2002. Incidentally, every document in the Privilege Log where Defendant raises attorney-client privilege, save two undated documents, were prepared after May 28, 2002. Those documents at issue are, therefore, privileged. With respect to the two undated documents in the Privilege Log, MILI 0103, and MILI 0122, the Court is satisfied, based on the description of the documents, that attorney-client privilege similarly applies as they were clearly litigation oriented.
Claims of work product “immunity” are governed by the principles set forth in Federal Rule of Civil Procedure 26(b)(3) which reads in pertinent part:
[A] party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party must anticipate litigation at the time the documents were drafted for these protections to apply. CSK Transp., Inc. v. Admiral Ins. Co., No. 930132-CIV-J-10,
Therefore, we need to determine when the document was created, and why it was created. See, e.g. In re Sealed Case,
Like assertions of attorney-client privilege, the burden is on the party withholding discovery to show that the documents should be afforded work-product immunity. See United States v. Schaltenbrand,
As Plaintiff argues and Defendant concedes, the onus is thus on Defendant to provide competent evidence that the material in question was created in anticipation of litigation. The parties do not agree, however, on which law, state or federal, applies.
1. Federal Law Governs Work Product
Defendant argues that Florida law controls the determination of whether documents in the Defendant’s claims file are protected from disclosure by the work-product doctrine:
State Farm anticipated litigation in state court from Plaintiff and Plaintiffs insurer and, in fact, Plaintiff filed her personal injury action against State Farm’s insured in state court. She litigated her entire ease against the insured in state court and ultimately entered into a settlement with State Farm’s insured there. Plaintiff then filed the instant action against State Farm in state court, but State Farm removed the action to this Court on July 23, 2007 based on diversity. Accordingly, all the documents which Plaintiff seeks were created by State Farm in anticipation of state court litigation. Consequently, the Court’s*699 work product analysis must necessarily flow from Florida law.
[D.E. 27 at 11]. Defendant relies on Cozort v. State Farm Mut. Auto. Ins. Co.,
Fifteen years before Cozort, the Middle District of Florida applied federal law for work product issues, as distinguished from state law that applied to attorney-client privilege issues:
While Rule 501, Fed.R.Evid. provides that Florida law of privilege governs in a federal diversity suit, the work product doctrine is a limitation on discovery in federal cases and federal law provides the primary deci-sional framework ... Therefore plaintiffs Florida state court cases on discoverability of claims flies are not binding.
Auto Owners Ins. Co. v. Totaltape, Inc.,
On April 7, 2005, just months before the ruling in Cozort, the Florida Supreme Court issued an opinion in Allstate Indemnity Co. v. Ruiz,
Consistent with the analysis outlined, we hold that in connection with evaluating the obligation to process claims in good faith under section 624.155, all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should also be produced in a first-party bad faith action. Further, all such materials prepared after the resolution of the underlying disputed matter and initiation of the bad faith action may be subject to production upon a showing of good cause or pursuant to an order of the court following an in-camera inspection.
Ruiz,
With this in mind, we turn to Cozort, where the plaintiff sued his insurance company in state court for bad faith practices following a successful coverage action against the company. Cozort,
We do not find this pre-Ruiz opinion (To-taltape) to be dispositive of the issue here. The work product at issue in the underlying coverage litigation was created with respect to the then pending state court case. As the coverage litigation was initiated, litigated, and resolved solely in state court, Rule 26 of the Federal Rules of Civil Procedure does not apply to any work product relating to that litigation.
Cozort,
Whether Cozort was right or wrongly decided on its facts is truly not relevant here for one obvious reason: this is not a bad faith ease. Defendant has taken great pains to highlight the fact that this case does not yet raise any bad faith issues, and based on this Defendant has argued, and the Court agrees, that the discovery that Plaintiff is entitled to in this case, based on relevance, is more limited than if the case were strictly a bad faith case. The issues here are narrower and deal strictly with a contractual coverage dispute. But Defendant would like to apply these particular work product cases that apply only when bad faith claims are present (in an effort to apply state law work product immunity that may be broader than under federal law) to a case that explicitly does not involve any Ruiz or Cozort issues.
Therefore, Cozort has no application here in derogation of well established principles of federal procedural law. For instance, the Tenth Circuit’s decision in Frontier Refining Inc. v. Gorman-Rupp Co.,
Finally, and not surprisingly, aside from the unique Emz-related issues raised by Co-zort and Shams, we have found no case that generally holds state law governs the work product doctrine in federal court, and the following explains why:
In diversity cases, the federal courts, with uniformity albeit not with self-evident logical consistency, have concluded that issues of attorney-client privilege are substantive and thus controlled by the forum state’s law, while issues of work-product doctrine are procedural and thus controlled by federal law. The reason for this bizarre distinction is that Rule 501 of the Federal Rules of Evidence requires that the privilege law of the forum state be applied, but is silent as to what law applies to issues of work-product doctrine, which are governed by Federal Rule of Evidence, codifying a Supreme Court case which created the concept of work-produet protection.
E. Epstein, The Attorney-Client Privilege and the Workr-Product Doctrine 1131-1132 (5th ed.2006); cf. Peat,
Now that we have decided that federal law, not state law, provides the rule of decision in this case, we turn to the more complex task of defining the parameters of the federal work product immunity is the context of insurance claim files. It does not appear that the Eleventh Circuit has specifically addressed the application of the work product doctrine to an insurer’s investigation of claims. Essex Builders Group,
Plaintiff takes the position that “documents constituting any part of a factual inquiry into or evaluation of a claim, undertaken in order to arrive at a claim decision, are produced in the ordinary course of an insurer’s business and are not work product.” Essex Builders,
At some point ... an insurance company’s activity shifts from mere claims evaluation to a strong anticipation of litigation. This is the point where the probability of litigating the claim is substantial and imminent. The point is not fixed, it varies depending on the nature of the claims, and they type of investigation conducted.
Id. (internal citations omitted). See also S.D. Warren Co. v. Eastern Elec. Corp.,
Plaintiff asks that we utilize the rebuttable presumptions established in Harper that documents or things prepared before the final decision on an insured’s claim are not work product, and that documents produced after claims denial are work product. See Essex Builders,
The only remaining issue is whether the Defendant offered “specific evidentiary proof’ that documents prepared before the final decision on the insured’s claim are entitled to work product protection. As mentioned earlier, Defendant points to a letter dated November 20, 2001 wherein counsel for the insured requested liability coverage information, and which expressly threatened a lawsuit if not contacted within thirty days. [D.E. 27-6], In some respects, one might anticipate litigation to ensue based on this letter alone. See, e.g., Schipp v. General Motors Corp.,
Based on this record, Defendant has not provided this Court with sufficient information to determine which documents dated prior to May 28, 2002 that were identified in its Privilege Log are protected by the work product doctrine. Defendant failed to provide this Court with evidentiary proof of objective facts, via affidavits or deposition
The Court will, therefore, find that no documents pre-dating May 28, 2002, should be withheld on work product grounds as Defendant has failed to satisfy its burden to show otherwise.
3. Plaintiff Does Not Show a “Substantial Need” for Documents Prepared After May 28, 2002
Protections offered by the work product doctrine are not absolute, and can be overcome if a party shows a “substantial need” of the documents and an inability to obtain a substantial equivalent of the documents or information without “undue hardship.” Fed.R.Civ.P. 26(b)(3); see, e.g. Schipp,
Plaintiff argues vehemently that it needs the underlying claim files because bad faith actions against an insurer “can only be proved by showing exactly how the company processed the claim, how thoroughly it was considered and why the company took the action it did.” Brown v. Superior Court in and for the County of Maricopa,
II. INDIVIDUAL PRODUCTION REQUESTS
A. Request for Production # 2-Commu-nication Between State Farm and its Agents, Employees, Representatives and Third Parties
Plaintiff seeks production of the entire claim file. Defendant is to produce those documents in the claim file dated prior to the coverage denial letter of May 28, 2002. Those documents are relevant, and not shielded by the work-product immunity (with the exception of the two undated documents that were identified as being privileged as attorney-client communications).
B. Request for Production # 3-The Underwriting File
Plaintiff requested the complete underwriting file from its inception to the present time. Although such documents are not privileged, they are irrelevant to the determination of coverage and Plaintiffs breach of contract claim. Defendant cites to a litany of cases discussing the discoverability of underwriting files [D.E. 27 at 16]. In short, the decisions suggest the underwriting files are discoverable in bad faith claims, but in breach of contract claims, only discoverable when the contract terms are ambiguous. See, e.g., Champion Int’l Corp. v. Liberty Mut. Ins. Co.,
By Plaintiffs own admission, there are no underwriting issues in this case. [D.E. 27-2 at 1]. Moreover, Plaintiff has not alleged an ambiguity in the contract language. Defendant thus does not have to turn over the underwriting file. See Johnson v. Geico General Ins. Co., No. 07-80310-Ryskamp,
On this record, however, any documents in the underwriting vehicle do not appear to be relevant to a claim or defense that has been raised, to date, in this case.
C. Request for Production #4, #5, #8, and #9
These requests are nothing more than subsets of documents already requested in # 2. As such, documents must be produced to the extent of our ruling for request for production # 2.
D. Request for Production # 6-Stan-dards and Claims Handling Guidelines on Qualifying Vehicles
Defendant indicated it has already produced to Plaintiff the insurance policy that contains the controlling language defining vehicles qualified for coverage under the terms and conditions of the policy. The fact that the parties dispute whether Plaintiffs automobile was a “qualified vehicle” does not, in and of itself, make the term ambiguous and necessitate the disclosure of claims handling guidelines. As such, Defendant has complied with this discovery in full by disclosing the insurance policy. See supra sec. II.B.
E. Request for Production # 7-Stan-dard Operating Procedures for Contacting Insureds
Prior to the determination of coverage, standard operating procedures are irrelevant, and we deny Plaintiffs request to overrule Defendant’s objections to discovery of these documents. Defendant’s failure to comply with internal guidelines, though potentially relevant to a bad faith action, is irrelevant to the determination of coverage, (i.e. whether Defendant breached the insurance contract).
* * *
III. CONCLUSION
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiffs Motion to Compel is GRANTED IN PART and DENIED IN PART in accordance with this Order.
Notes
. Discovery disputes have been referred to this Court by the Honorable Joan A. Lenard [D.E. 4].
. Milinazzo initially filed a state tort claim against Singh and Cox after she was rear-ended by a vehicle owned by Singh and driven by Cox. Pursuant to a Settlement and Assignment Agreement, Milinazzo is an assignee of Singh and Cox’s rights and interest in any cause of action they made have against State Farm for allegedly failing to defend, indemnify, and/or settle that claim within the policy limits.
. Federal Rule of Civil Procedure 37(a)(2)(b) requires the movant to "in good faith confer[] or attempt[] to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action."
. But see Tower 1515 Condo. Apartments Assoc., Inc. v. QBE Ins. Corp., No. 05-80780-CIV-Hur-ley,
Interestingly, Defendant also relied on Tower 1515 as grounds to not turn over documents in the claims file. As a practical matter, however, Defendant will have to justify its denial of coverage to mount a breach of contract defense. Even if we did not compel the production of these documents, the information contained therein would have likely have been disclosed voluntarily-
. It goes without saying, of course, that the fact that some of these documents may contain relevant information with respect to the premature bad faith claim does not foreclose their discover-ability if they are also relevant to the breach of contract claim.
. Decisions rendered in the Fifth Circuit prior to close of business on September 30, 1981 are binding precedent in the Eleventh Circuit. Bon
. Plaintiff also cited to Shams v. State Farm Mut. Auto. Ins. Co., No. 6:06-CV-621-Orl-28-DAB,
. Notably, the coverage issue in Cozort had already been resolved, whereas here the coverage question is currently pending before this Court. The documents Plaintiff seeks "happened to have been created during the underlying state court litigation,” but there has yet to be a coverage determination. [D.E. 28 at 5 (Plaintiffs Reply) ].
. Because this Court is applying federal law with respect to the work-product doctrine, a further discussion of state law is unwarranted. We will add, however, that we are not necessarily convinced that the outcome of the Court’s rulings here would have been materially different had Florida law governed.
. Alternatively, if discovery that is obtained during the course of the coverage dispute strengthens Plaintiff’s argument that the underwriting file is possibly relevant, Plaintiff may raise the issue again.