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Kifer v. American Family Mutual Insurance Co.

United States District Court, W.D. Washington, Tacoma

May 5, 2015

BRET C. KIFER and JENNIFER A. KIFER, Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

ORDER ON DEFENDANT'S RENEWED MOTION FOR PROTECTIVE ORDER AND PLAINTIFFS' RENEWED MOTION TO COMPEL

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Plaintiffs' Renewed Motion to Compel Production of Documents from Defendant (Dkt. 86) and Defendant American Family Mutual Insurance Company's ("American Family") Renewed Motion for Protective Order (Dkt. 88). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

This case arises from an insurance coverage dispute following a November 3, 2012 fire at Plaintiffs' personal residence. Dkt. 1. At the time of the fire, Plaintiffs had an insurance policy with Defendant, policy number 46-BD7584-01. Dkt. 18-1. Plaintiffs make claims for breach of contract, for violations of the duties of good faith and fair dealing found in the Washington Administrative Code ("WAC") XXX-XX-XXX pursuant to the Insurance Fair Conduct Act, RCW 48.30.010, et seq. ("IFCA"), and for violations of Washington's Consumer Protection Act ("CPA") RCW 19.86, et seq. Dkt. 72.

The instant motions are partial renewals of prior motions that were denied without prejudice. Dkt. 82. Plaintiffs now renew, in part, their motion to compel certain documents listed in Defendant's Third Supplemental Privilege Log. Dkt. 86. Defendant renews a motion for the issuance of an order protecting it from having to produce those documents. Dkt. 88.

RELEVANT FACTS

The background facts are in the February 10, 2015 Order on Defendant's Motion for Partial Summary Judgment and Plaintiff's Motion for Leave to Amend Complaint (Dkt. 62, at 2-5) and are adopted here. That order denied Defendant's motion for a ruling that Plaintiffs' claims based on the WAC violations pursuant to the IFCA be dismissed because there has been no denial of coverage and granted Plaintiffs' motion for leave to amend their complaint to add a claim for violation of the Washington State Consumer Protection Act, RCW 61.24.127(a)(b). Id. Plaintiffs filed their First Amended Complaint on February 18, 2015. Dkt. 72.

On February 16, 2015, Defendant moved for the issuance of an order protecting it from having to produce documents which were generated after October 2, 2013 (the date Plaintiffs notified the Washington State Insurance Commissioner of their complaint against Defendant) and which were withheld as privileged because they were attorney-client materials, work product materials and/or created in anticipation of litigation. Dkt. 63. Defendant alternatively asserted that those documents generated after November 1, 2013 (the date Plaintiffs' filed this case) and which it asserted were privileged should be protected. Id. Plaintiffs did not directly respond to the motion for protective order, but, instead filed a Motion to Compel (Dkt. 67). In that motion to compel, Plaintiffs sought, in part, an order compelling Defendant to produce bates stamped documents #21, #62, #82 and #83. Dkt. 67. Plaintiffs also moved for an order compelling Defendant to produce the documents identified in pages 4-7 of Defendant's Supplemental Log. Dkt. 67. In its Supplemental Privilege Log, Defendant asserted "attorney-client privilege, anticipation of litigation and work product" as to each of these documents. Dkt. 68-3, at 2-7.

On March 16, 2015, both motions were denied. Dkt. 82. In regard to these motions, the order provided:

Defendant's motion for a protective order as to (Dkt. 63) should be denied without prejudice. The Court is unable to discern under the current record, whether any of the documents at issue are protected by the work product doctrine. None of the documents were filed in support of the motion, under seal (See Local Rule W. D. Wash. 5(g)), or otherwise. Moreover, Plaintiffs have pointed out that the Defendant's Supplemental Privilege Log is not sufficiently clear as to all the entries. Descriptions such as "American Family Claims File Log after 10/02/12-Date of IFCA Suit Notice" or "Document/image log note after 10/02/12-Date of IFCA Suit Notice" are not enough to determine whether the doctrine applies. Defendant has not yet shown good cause for issuance of a protective order. Plaintiffs' blanket motion to compel all of these documents (Dkt. 67) should also be denied without prejudice. Certain entries in the Defendant's Supplemental Privilege Log, such as "American Family Claim File Log - entry re: meeting with legal, " are sufficient.
To the extent Plaintiffs move for an order compelling Defendant to provide a more detailed Privilege Log and Supplemental Privilege Log (Dkt. 67), that motion should be granted. Defendant should be ordered to provide a more detailed Privilege Log and Supplemental Privilege Log to Plaintiffs by April 3, 2005. Parties are strongly urged to resolve this dispute on their own without court intervention. Only absolutely necessary motions should be filed.

Dkt. 82, at 9-10.

Parties here certify that they have conferred and attempted to resolve these discovery disputes pursuant to Fed.R.Civ.P. 37(a)(1), to no avail. These motions followed.

The trial is set to begin on July 6, 2015. Dkt. 44.

DISCUSSION

Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in diversity jurisdiction, as is the case here, apply state substantive law and federal procedural law. Gasperini v. ...


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