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Kosjer v. Coffeyville Resources Crude Transportation, LLC

United States District Court, D. Kansas

March 5, 2018

MARC E. KOSJER, Plaintiff,


          James P. O'Hara U.S. Magistrate Judge

         This is a personal-injury case arising from a collision between an automobile and a commercial tractor-trailer rig. Plaintiff has filed a motion (ECF No. 32) asking the court to compel defendants to produce the claims file of defendants' liability insurer. Defendants object to the production of the claims file based on work-product protection, and to the production of certain documents within the file on the grounds of attorney-client privilege and relevance. For the reasons stated below, the motion is denied without prejudice.

         As an initial matter, the court is unconvinced plaintiff satisfied the duty-to-confer requirement contained in D. Kan. Rule 37.2 before filing the instant motion. D. Kan.

Rule 37.2 states, The court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37 … unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Every certification required by Fed.R.Civ.P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.

         Plaintiff asserts he mailed a golden-rule letter to defendants on December 28, 2017, counsel for both parties spoke in-person regarding this dispute on January 19, 2018, and defense counsel indicated he would provide a response to plaintiff's golden-rule letter by January 23, 2018. Plaintiff filed the instant motion on January 26, 2018, claiming he hasn't received a response to his golden-rule letter. The court finds the good-faith requirement should have led plaintiff's counsel to at least attempt to contact defense counsel one final time before filing the motion to compel. Based on defense counsel's apparent notice that he did plan to respond, it was not unreasonable for defense counsel to expect plaintiff's counsel to await defendants' response before filing a motion to compel.

         Turning to the merits of plaintiff's motion, the court finds the instant record insufficient to evaluate defendants' work-product protection and attorney-client privilege assertions. Given the absence of any true meet-and-confer, as well as the state of the record, the court denies plaintiff's motion without prejudice and orders defendants to produce a supplemental privilege log on or before March 19, 2018. To avoid problems down the road, in this order, the court will give both plaintiff and defendants clear advance guidance about what the court considers legitimately relevant, privileged, and protected.

         Work-Product Protection

         The work-product doctrine is governed by the uniform federal standard set forth in Fed.R.Civ.P. 26(b)(3). It provides:

Ordinarily, 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).

         Courts in this district have described the work product standard as having two components:

The first is what may be called the “causation” requirement. This is the basic requirement of the Rule that the document in question be produced because of the anticipation of litigation, i.e., to prepare for litigation or for trial. The second component is what may be termed a “reasonableness” limit on a party's anticipation of litigation. Because litigation can, in a sense, be foreseen from the time of occurrence of almost any incident, courts have interpreted the Rule to require a higher level of anticipation in order to give a reasonable scope to the immunity.[1]

         Under the first component, work prepared in the ordinary course of business isn't protected.[2] Under the second component, “the threat of litigation must be real and imminent. The inchoate possibility, or even the likely chance of litigation, does not give rise to the privilege.”[3]

         Attorney-Client Privilege

         “In federal court, the determination of what is privileged depends upon the dictates of Rule 501 of the Federal Rules of Evidence.”[4] Because subject-matter jurisdiction in this case is based on diversity, Rule 501 directs that “state law governs privilege.” Under Kansas law, the essential elements of the attorney-client privilege are:

(1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) the communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived.[5]

         The purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”[6] It protects “advice given by the attorney in the course of representing the client, ” as well as “disclosures of the client … incidental to the professional relationship.”[7] The privilege doesn't apply, however, “to every interaction between attorney and client.”[8] For example, K.S.A. ยง ...

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