The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Plaintiff, Helen Taylor as special administrator of the estate of George Taylor, brought a wrongful death suit against defendant, Pilot Travel Centers, LLC, alleging that Pilot negligently maintained its parking lot and, as a result, caused George's death after he was struck and killed by a hitand-run driver in Pilot's parking lot. During this action, Helen passed away and David Black was appointed as special administrator of George's estate and substituted as the plaintiff in this action. The parties are now in the discovery stage of litigation. Black brought a motion to compel certain discovery from Pilot relating to a similar incident involving Gregory Zuba that occurred around November 16, 2005, where a hit-and-run driver struck and killed Zuba in Pilot's parking lot. The court deferred ruling on the motion until it conducted an in camera review of the documents that Pilot claimed were protected by the attorney-client privilege or the work product doctrine. Docket 28. The court has conducted the in camera review and now grants in part and denies in part Black's motion to compel.
Document 1 is email correspondence dated December 16, 2009, between attorney Sandra Hogland Hanson and Stephen Blair, a risk management supervisor at Pilot. Pilot asserts that this document is protected by the attorney-client privilege.
State law supplies the rules of decision for attorney-client privilege in diversity cases. Fed. R. Evid. 501. Because this is a diversity case and South Dakota law is the governing substantive law, South Dakota law also supplies the law on privilege.
The party claiming a privilege has the burden to establish that the privilege exists. Dakota, MN & E. R.R. Corp. v. Acuity, 771 N.W.2d 623, 637 (S.D. 2009) (citing State v. Catch the Bear, 352 N.W.2d 640, 645 (S.D. 1984)). The attorney-client privilege protects from disclosure "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . ." SDCL 19-13-3. There are four minimum elements necessary to invoke the attorney-client privilege: "(1) a client; (2) a confidential communication; (3) the communication was made for the purpose of facilitating the rendition of professional legal services; and (4) the communication was made in one of the five relationships enumerated in SDCL 19-13-3." Catch the Bear, 352 N.W.2d at 645.
A client is a person who or entity that "is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services . . . ." SDCL 19-13-2(1). Blair, a Pilot representative and contact person for this litigation, is a client because he received legal services from Hanson in the letter dated December 16, 2009. Document 1 is a confidential communication between Blair and Hanson and was intended to facilitate the rendition of legal services. All four elements are met, and, thus, the attorney-client privilege protects document 1 from disclosure to Black.
Document 2 is a letter dated December 9, 2009, from Hanson to Blair. Because this is a communication between an attorney and her client containing legal advice, the attorney-client privilege protects against the disclosure of document 2.
The remaining documents, except documents 9 and 11 that contain handwritten notes, concern reports, photos, newspaper articles, correspondence, and invoices from Doss & Associates Claims Services and Liberty Mutual Insurance Company to Pilot concerning investigations into and insurance claims regarding Zuba's death. Pilot contends that these documents are protected by the work product doctrine and the attorney-client privilege.
Federal law applies in a diversity case where a party asserts the work product doctrine. Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000) (citing Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir. 1987)). The federal rules provide that "[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A). The Eighth Circuit distinguishes between documents produced in the ordinary course of business and in anticipation of litigation:
[T]he test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.
Simon, 816 F.2d at 400 (citing 8C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (1970)); see also 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2024 (4th ed. 2010) ("The focus is on whether specific materials were prepared in the ordinary course of business, or were principally promoted by the prospect of litigation.").
A document is produced in anticipation of litigation if there is a threat of an adversary proceeding and the document was produced after that threat became palpable. Helt v. Metro. Dist. Comm'n, 113 F.R.D. 7, 12 (D. Conn. 1986) ("To qualify, the documents must have been prepared 'any time after initiation of the proceeding or such earlier time as the party who normally would initiate the proceeding had tentatively formulated a claim, demand or charge.' " (quoting United States v. AT&T, 86 F.R.D. 603, 627 (D.D.C. 1979)). The threat of litigation must be a specific threat. See Resident Advisory Bd. v. Rizzo, 97 F.R.D. 749, 754 (E.D. Pa. 1983) (reasoning that the work product doctrine "is not applicable unless some specific litigation is fairly foreseeable at the time the work product is prepared."); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 143 (D. Del. 1982) ("[L]instigation must be at least a real possibility at the time of preparation or, in other words, the documents must be prepared with an eye to some specific litigation." (citing In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3d Cir. 1979))). The party resisting discovery bears the burden to prove that the work product doctrine protects the material sought. Rabushka ex rel United States v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997).
There are two kinds of attorney work product: ordinary and opinion work product. Baker, 209 F.3d at 1054. "Ordinary work product includes raw factual information." Id. (citing Gundacker v. Unisys Corp., 151 F.3d 842, 848 n.4 (8th Cir. 1998)). "Opinion work product includes counsel's mental impressions, conclusions, opinions or legal theories." Id. (citing Gundacker, 151 F.3d at 848 n.5). "Ordinary work product is not discoverable unless the party seeking the discovery has a substantial need for the materials" and "cannot obtain the substantial equivalent" of the requested discovery. Id. (citing Fed. R. Civ. P. 26(b)(3)). "[O]pinion work product enjoys almost absolute immunity . . . ." Id.
The documents were prepared by an insurance adjuster for Pilot. Pilot asserts no facts that litigation surrounding the incident leading to Zuba's death was anticipated or imminent at the time the documents were prepared. Instead, Pilot cites to case law, particularly Ashmead v. Harris, 336 N.W.2d 197 (Iowa 1983), and argues that documents produced in an ...