United States District Court, W.D. Kentucky, Paducah Division
OPINION AND ORDER
KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny King for ruling on all discovery motions. (Docket
matter is before the Court on Defendant, American Commerce
Insurance Company’s (hereinafter, “ACIC”)
Motion to Compel, or, in the Alternative, Motion for In
Camera Review. (Docket # 16). Plaintiff Renita Coneal
has filed a Response (Docket #17), and Defendant has filed a
Reply (Docket # 18). Fully briefed, this matter is now ripe
reasons detailed below, Defendant’s Motion (Docket #
16) is GRANTED in part and DENIED in part. The Court finds
that all of the information requested is broadly relevant,
but the information is privileged except for those documents
pertaining to the Plaintiff’s choice of law firm.
matter arises from a civil action brought by Plaintiff Coneal
against Defendant ACIC for violations of Kentucky’s
Unfair Claims Settlement Practices Act, The Kentucky Consumer
Protection Act, and Kentucky common law regarding bad faith,
as well as injuries suffered in an automobile accident.
(Docket # 1). Coneal’s claims derive from ACIC’s
handling of Plaintiff’s insurance claim against
ACIC’s insured, Mary Payne, for damages suffered in an
automobile accident. (Id.). Plaintiff brought claims
against both Payne and ACIC. (Docket # 17 at 1). Coneal made
a settlement demand to ACIC in May or June of
2016. Coneal alleges that ACIC acted in bad
faith by neglecting to respond to this demand until January
17, 2018, well over 20 months afterward. (Id.).
Defendant argues that Plaintiff’s former attorney,
David Oakes, was the reason for much of the delay.
“[I]t is apparent from discovery that a great deal of
delay in reaching a settlement was caused by David Oakes, the
attorney whom Plaintiff engaged to represent her in
presenting her pre-suit claim for compensation of alleged
injuries to ACIC.” (Docket # 16 at 3). Defendant
attributes further delay to questions regarding the possible
pre-existence of Coneal’s medical conditions.
(Id. at 4). Plaintiff believes that ACIC had the
necessary information to attempt to settle the claim well
before January 2018. (Docket # 17 at 2).
case was originally filed in McCracken Circuit Court, and
Defendant subsequently removed it following Ms. Payne’s
dismissal. (Docket # 1 at 2). Plaintiff provided, along with
her responses to Defendant’s Second Set of Requests for
Production of Documents and Interrogatories, two privilege
logs. (Docket # 16 at 4). The first pertained to documents
provided by Oakes, the second related to documents provided
by Saladino & Schaaf, Oakes’ former law firm.
(Id). Plaintiff claimed 34 documents were
protected by the attorney-client privilege. (Docket # 16 at
4). Defendant disagrees with 20 of those claims, but states
that some of those documents may be duplicates.
argues that the information requested is relevant and
discoverable and is not covered by the protections of
attorney-client privilege, as it is underlying factual
information to which the protections are not extended.
(Id. at 7). Specifically, Defendant seeks
information from six sources: (1) documents reflecting
injuries suffered and medical treatment received by Plaintiff
(lines 8, 9, and 10 of the Oakes privilege log and lines 11,
1215, 16, and 17 of the Saladino & Schaaf privilege log);
(2) the Attorney Screening Form used by David Oakes (line 20
of the Oakes privilege log); (3) the engagement letter signed
by Coneal with regards to her representation by Saladino
& Schaaf for her claim for compensation from ACIC (line 9
of the Saladino & Schaaf privilege log); (4)
Coneal’s contingency fee agreement regarding her
compensation claims (lines 18 and 21 of the Oakes Privilege
Log); and (5) Coneal’s contingency fee agreement
regarding her bad faith claims (line 14 of the Oakes
privilege log); and (6) documents pertaining to
Coneal’s choice between law firms (line 17 of the Oakes
privilege log and lines 5, 6, 7, and 18 of the Saladino &
Schaaf privilege log). (Id. at 10-14). Plaintiff
responds that the documents are covered by the
attorney-client privilege and are not discoverable,
regardless of any showing of need, or nature of underlying
facts. (Docket # 17 at 4-7). Additionally, Plaintiff alleges
that Defendant already has the information it seeks in these
documents from other, non-privileged sources. (Id.
26(b)(1) is the touchstone for the scope of civil
discovery.” Pogue v. NorthWestern Mut. Life Ins.
Co., No. 3:14-CV-598-CRS, 2017 WL 3044763, at *4 (W.D.
Ky. July 18, 2017). Rule 26(b)(1) provides that
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). Relevance is to be
“construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matter[s] that
could bear on any party’s claim or defense. The Court
has wide discretion when dealing with discovery matters,
including whether information might be relevant.”
Alvey v. State Farm Fire & Casualty Co., No.
5:17-CV-00023-TBR-LLK, 2018 WL 826379, at *2 (W.D. Ky. Feb.
9, 2018) (citing Pogue, 2017 WL 3044763, at *5)
26(b)(2) addresses limitations on the frequency and extent of
discovery. See Schall v. Suzuki Motor of Am., Inc.,
No. 4:14CV-00074-JHM, 2017 WL 4050319, at *4 (W.D. Ky. Sept.
13, 2017); Pogue, 2017 WL 3044763, at *5. Subpart
(C) When Required. On motion or on its own, the court must
limit the frequency or extent of discovery otherwise allowed
by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted
by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
documents fall outside of the scope of discovery. Fed. R.
Civ. P.26(b)(1). The burden of establishing that a privilege
exists to shield a document from discovery rests on the party
asserting the privilege. Cardinal Aluminum Co. v.
Continental Casualty Co., No. 3:14-CV-857-TBR-LLK, 2015
WL 4483991, at *2 (W.D. Ky. July 22, 2015). Here, Plaintiff
must bear that burden. In re Grand Jury Investigation No.
83-2-35, 723 F.2d 447, 450 (6th Cir. 1983).
pled claims under the Kentucky Unfair Claims Settlement
Practices Act, the Kentucky Consumer Protection Act, and
Kentucky common law regarding bad faith. (Docket # 1). The
source of federal jurisdiction in this removal action rests
in diversity. Thus, for questions of attorney-client
privilege, this Court must apply state law if “state
law supplies the rule of decision for the claim.”
Fed.R.Evid. 501; see In re Powerhouse Licensing,
LLC, 441 F.3d 467, 472 (6th Cir. 2006); see also
Pinnacle Surety Services, Inc. v. Manion Stigger, LLP,
370 F.Supp.3d 745, 750 (W.D. Ky. 2019). State law supplies
the rules of decision for all the claims in this case,
therefore, this Court must apply the Kentucky law regarding
attorney client privilege. Jewell v. Holezer Hosp.
Found., Inc., 899 F.2d 1507, 1513 (6th Cir. 1990)
(“In a civil case involving claims based on state law,
the existence of a privilege is to be determined in
accordance with state, not federal, law.”) see also
Brown v. Tax Ease Lien Servicing, LLC, No.
3:15-CV-208-CRS, 2017 WL 6939338, at *11 (W.D. Ky. Feb. 16,
serves as the threshold requirement for all discovery.
Evidence need not be admissible to be discoverable, it needs
only to meet the threshold of relevance. Information is
within the scope of discovery if it is “relevant to any
party’s claim or defense and proportional to the needs
of the case.” Fed.R.Civ.P. 26(b)(1). Coneal claims that
the information sought by ACIC lacks relevance. ACIC argues
that these documents shed light on the reasons for the delay
in attempting to resolve Coneal’s claims. As an initial
matter, the Court finds all of the information requested by
ACIC meets the requirements of relevance under Rule 26.
relevance of these documents derives from the common-sense
linkage between Plaintiff’s claims and the information
contained within the documents. Plaintiff has brought claims
for physical injuries incurred in an accident with
ACIC’s insured. (Docket # 1-1). In so doing, she has
placed her medical condition into issue. This means that
information pertaining to her medical condition is relevant
to this case. Therefore, documentation reflecting injuries
suffered and medical treatment received by the
Plaintiff (lines 8, 9, and 10 of the Oakes privilege
log and lines 11, 12, 15, 16, and 17 of the Saladino &
Schaaf privilege log) and the Attorney Screening Form (line
20 of the Oakes privilege log) are relevant. Both contain
information regarding the underlying motor vehicle accident,
as well as injuries suffered by the Plaintiff. The
information contained in these documents is relevant to this
all of the broad categories of information requested likely
contain information relevant to Plaintiff’s claims
under the Kentucky Unfair Claims Settlement Practices Act, as
well as Kentucky law regarding bad faith insurance claims.
(Docket #1-1). Plaintiff asserts that ACIC delayed in
attempting to settle her claim, much to her detriment.
(Id.). ACIC counters that Plaintiff’s own
actions were the cause of the delay.
accident at the center of this case occurred on February 12,
2015. (Id.). Plaintiff’s state court suit was
filed on November 27, 2017. (Id.). The Attorney
Screening Form, Engagement Letter, Contingency
Agreements for both her underlying tort claims and
bad faith claims, and documents concerning Plaintiff’s
choice of law firms all are relevant to the delay in filing
suit. Each may contain information that sheds light on
Plaintiff’s reasons for waiting to file suit, the
reasons for relevant gaps in time, and the like. All of these
would be important to determining the presence of bad faith
on the part of ACIC in its handling of Plaintiff’s
the reasons for the delay could be relevant to development of
evidence for trial. “The Sixth Circuit has held that
one may admit ‘facts tending to show interest, bias or
motive’ at trial, and therefore one may discover such
evidence or information reasonably calculated to lead to the
discovery of such evidence.” In re Complaint of
Foss Maritime Co., No. 5:12-CV-21-TBR-LLK, 2015 WL
1249571, at *1 (W.D. Ky. Mar. 18, 2015) (citing Majestic
v. Louiville & Nashville R.R. Co., 147 F.2d 621, 627
(6th Cir. 1945)). To establish a bad faith claim under
Kentucky law, information surrounding Plaintiff’s delay
would be relevant to a showing of “interest, bias, or
motive” at trial.
Plaintiff has failed to carry the burden of refuting
relevance. In filing a claim for bad faith that seeks damages
and attorney’s fees, Plaintiff has placed the fees
incurred in the underlying claim at issue. Further, Plaintiff
does no more to dispute the relevance of this information
than to state that it is not relevant. Again, the bar of
relevancy is a low one. The party resisting discovery has the
burden to “show that the material sought either falls
beyond the scope of relevance, or is so marginally relevant
that he potential harms of production outweigh the
presumption in favor of broad disclosure.” Bentley
v. Highlands Hosp. Corp., No. 7:15-CV-97-ART-EBA, 2016
WL 762686, at *1 (E.D. Ky. Feb. 23, 2016). Defendant has
established that the information requested is relevant, and
Plaintiff does not present evidence to successfully refute
Court finds that all subsets of information sought by
Defendant ACIC is relevant and within the bounds of
discovery. The Court will now address Plaintiff
Coneal’s objections based upon the attorney-client
Defendant has produced Plaintiff’s privilege logs from
both Oakes Law Firm and Oakes’ previous employer,
Saladino & Schaaf. (Docket # 16-2). In its Motion to
Compel, Defendant argues that Plaintiff’s privilege
logs withhold information that is not privileged. (Docket #
16 at 5). The logs invoke the attorney-client privilege as
the basis for exclusion.
asserts that the information sought by Defendant is protected
from disclosure by the attorney-client privilege. The
attorney-client privilege is bedrock principle of American
jurisprudence. 8 J. Wigmore, Evidence § 2290 (McNaughton
rev. 1961); see also Hunt v. Blackburn, 128 U.S.
464, 470, 9 S.Ct. 125, 127 (1888). It exists for the purposes
of excluding communications, made in confidence between
client and counsel, for the purposes of procuring legal
services, from use in legal proceedings. Hickman v.
Taylor, 329 U.S. 495, 508 (1947).
“lawyer-client privilege” functions as the
state’s equivalent of the federal attorney-client
privilege. As discussed above, a federal court, sitting in
diversity, analyzing claims brought under state law, applies
the state law of ...