United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO COMPEL
J. Pechman United States District Judge.
MATTER comes before the Court on Plaintiff Reverse Now VII
(“Reverse Now”)'s in camera submission.
Having reviewed the in camera submission and the
earlier briefing on Defendant Oregon Mutual Insurance Company
(“Oregon Mutual”)'s Motion to Compel (Dkt.
Nos. 57, 67, 74), the Court GRANTS IN PART and DENIES IN PART
the Motion to Compel.
the facts of this case are set forth in detail in prior
orders, and the Court will not repeat them here. (See,
e.g., Dkt. Nos. 40, 43.) The remaining relevant facts
are as follows: Shortly after the loss in dispute, Plaintiff
retained Paul Moreland and HMA Loss Consultants LLC
(“HMA”) to represent it in its claim, including
during the appraisal process in January-February 2016. (Dkt.
No. 49.) Plaintiff disclosed Mr. Moreland as an expert in
March 2018. (Id.).
April 2018, upon learning that Mr. Moreland failed to
maintain a valid public adjusters' license throughout the
appraisal process, Oregon Mutual amended its answer to add
affirmative defenses of misrepresentation and concealment,
and moved to compel correspondence and documents related to
Mr. Moreland and HMA. (See Dkt. Nos. 54, 57, 76.)
Mutual contends that Plaintiff has improperly withheld
documents and communications generated in the course of Mr.
Moreland's role as a public adjuster. (Dkt. No. 57.) The
Court ordered Plaintiff to produce all documents relating to
Mr. Moreland and/or HMA generated before he was retained as
an expert, and to submit for in camera inspection
all documents generated after he was retained. (Dkt. No. 79.)
That inspection is now complete.
Rule of Civil Procedure 26(b)(3) provides that
“[o]rdinarily, a party may not discover documents and
tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its
representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent).”
The Ninth Circuit has explained that “a document should
be deemed prepared in anticipation of litigation and thus
eligible for work product protection under Rule 26(b)(3) if
in light of the nature of the document and the factual
situation in the particular case, the document can be fairly
said to have been prepared or obtained because of the
prospect of litigation.” In re Grand Jury
Subpoena, 357 F.3d 900, 907 (9th Cir. 2004). If a
document would have been created in substantially similar
form in the normal course of business, however, the fact that
litigation is pending will not protect it from discovery.
In Camera Inspection
submitted 294 documents and communications for the
Court's inspection. (See Dkt. No. 81, Ex. 2.)
After reviewing these materials, the Court finds that the
majority of documents identified for work product protection
and attorney-client privilege were properly withheld.
vast majority of the withheld documents appear to either be
communications between Mr. Moreland and Plaintiff's
lawyers, or documents generated by Mr. Moreland at the
request of Plaintiff's lawyers. In this regard,
“the degree to which counsel is involved in preparation
of a document can obviously ease the burden of establishing
that the document was created ‘in anticipation of
litigation or for trial, ” as “[i]t is, after
all, lawyers who typically conduct litigation and try
cases.” MKB Constructors v. Am. Zurich Ins.
Co., 2014 WL 12029371, at *4 (W.D. Wash. July 22, 2014).
Further, the Court is aware of no authority for the position
that a public adjuster-whether licensed or not-cannot
properly be considered a party's
“representative” for purposes of Rule 26(b)(3)
where, as here, he works on behalf of the party or the
Oregon Mutual observes that many of the withheld documents
are related to the appraisal process (Dkt. No. 57 at 6), that
is to be expected as many of the claims in the litigation are
based upon allegations of fraud in that process. Contrary to
Oregon Mutual's suggestion, it can hardly be said that
documents generated by Mr. Moreland months after the close of
the appraisal process were generated as “a part of the
appraisal process” and thus “in the normal course
of business.” (Id.)
the Court finds that several of the withheld documents do not
meet the requirements of Rule 26(b)(3) and are not otherwise
subject to privilege. For example, Document Nos. 115, 116,
and 218 appear to primarily consist of communications between
Mr. Moreland and non-parties, such that any claim of
protection or privilege has been waived. Further, the Court
finds that Plaintiff's privilege log is woefully
inadequate, and does not even begin to “describe the
nature of the documents, communications, or tangible things
not produced or disclosed . . . in a manner ...