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Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law

In Cicon v. State Farm Mutual Auto Ins. Co., No. 14-2187 (M.D. Pa. Aug. 21, 2015), Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Case Background

In this case, the plaintiff sued the defendant insurance company regarding coverage of the plaintiff’s injuries in an automobile accident.  During the course of litigation, the defendant produced a privilege log which cursorily described communications between the defendant and legal counsel as well as internal communications between various of its claims personnel.  The plaintiff filed a motion to compel, seeking documents that detailed communications between the defendant and its attorneys in relation to this case, as well as documents that detailed communications between the defendant’s employees or agents regarding this matter.  With regard to the attorney-client communications, the plaintiff argued that they should be produced because many of the attorney-client communications referenced in the defendant’s privilege log occurred before the filing of the complaint that initiated the case.

Judge’s Ruling

With regard to the plaintiff’s argument for producing the attorney-client communications, Judge Conaboy stated “The Court cannot agree. Because Plaintiff retained counsel and threatened litigation via the aforementioned letter of February 18, 2014, all communications between Defendant and its various attorneys that post-date February 18, 2014 are very likely, if not presumptively, concerned with the Defendant’s defense of this matter. Simply put, Plaintiff has cited no evidence that the attorney-client communications Defendant seeks to shield were related to mere business purposes.”  As a result, Judge Conaboy denied the plaintiff’s request to have these documents produced.

With regard to communications between the defendant’s employees, Judge Conaboy ruled to “categorically exclude from production those that post-date Plaintiff’s counsel’s letter of February 18, 2014 threatening litigation”, deciding to “presume that all inter-office communications in this file after that date were prepared in anticipation of litigation and are, thus, properly excluded from discovery except in the redacted form Defendant has proposed.”  However, with regard to the “numerous” inter-office communications in the privilege log that pre-dated the plaintiff’s counsel’s letter, Judge Conaboy concluded that “inter-office communications before that date were prepared in the ordinary course of business, and, consequently, are not subject to work product protection”.  He did note, that “[t]o the extent that any of these documents contain explicit discussion of an attorney’s advice or direction, Defendant may redact the document to exclude such excerpts consistent with the earlier discussion of attorney-client privilege.”

So, what do you think?  Should the defendant have been ordered to produce the non-attorney emails?  Please share any comments you might have or if you’d like to know more about a particular topic.

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