United States District Court, D. Kansas
DR. THOMAS C. WELTON and MARY E. WELTON, husband and wife, Plaintiffs,
AMCO INSURANCE COMPANY, Defendant.
ORDER ON PLAINTIFF'S MOTION TO COMPEL
KENNETH G. GALE, Magistrate Judge.
Now before the Court is Plaintiffs' "Motion to Compel the Production of the Phoenix Restoration Fire Report and AMCO Insurance's Claim Files, Investigation Materials and Activity Logs Post October 2012." (Doc. 18.) For the reasons set forth below, the Court GRANTS in part and DENIES in part this motion.
Plaintiffs bring the present action alleging that Defendant insurance company "fail[ed] to pay the total amount of fire damages... for a fire that broke out in Plaintiffs' garage on January 18, 2012." (Doc. 19, at 2.) Prior to the filing of this lawsuit, the parties engaged in a mediation on September 26, 2013, in which their respective experts had vastly different calculations of Plaintiffs' damages.
According to Plaintiffs, thereafter, "[t]he mediator recommended that both adjusters go together to the Property and see what fire damages they could work out together to recommend to each of their clients." ( Id., at 5.) Plaintiffs continue that counsel for the parties instead "agreed that [Defendant] would hire Phoenix Restoration Company to independently adjust the fire damage." ( Id. ) Plaintiffs contend that they "asked AMCO Insurance to pay the cost of the Phoenix Restoration report because Plaintiffs felt they had wasted their money and time on a mediation that did not produce any offer from [Defendant]." ( Id., at 10.)
Plaintiffs' counsel and defense counsel both attended and were involved in the inspection by Phoenix, which occurred on November 15, 2013. ( Id., at 5.) Both Defendant and defense counsel received a copy of the report by Phoenix. ( Id., at 6.) Defendant has, however, refused to provide Plaintiffs with a copy of the report. The present lawsuit was filed on June 10, 2014.
In response to Plaintiffs' motion, Defendant concedes that "Plaintiffs' factual allegations regarding the Phoenix Restoration report are essentially correct." (Doc. 22, at 4.) Defendant contends that "[i]t is undisputed that the report was prepared at the direction of AMCO's retained counsel after a failed mediation." ( Id. ) Defendant does not contest Plaintiffs' assertion that it was a joint decision by the parties, based on a similar course of action suggested by the mediator, to have the inspection. Defendant does, however, argue that the report is privileged and protected by the work product doctrine.
A. Phoenix Restoration Report.
Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.
Defendant does not argue the relevance of the Phoenix report, but rather contends that it is subject to the protections of the attorney-client privilege and work product doctrine.
Under federal common law, the essential elements of the attorney-client privilege are: (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) except if the protection is waived. Marten v. Yellow Freight Sys., Inc., No. 96-2013-GTV, 1998 WL 13244, *5 (D.Kan. Jan. 6, 1998) (citation omitted).
The privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his capacity as a legal advisor.' The privilege also protects advice given by the lawyer in the course of representing the client.... The privilege, however, ...