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Feld v. Fireman's Fund Insurance Co.

United States District Court, District of Columbia

April 16, 2014

KENNETH FELD, Plaintiff,


JOHN D. BATES, District Judge.

The parties to this insurance coverage action are just a few weeks away from reaching an unfortunate milestone: the one-year anniversary of an active discovery dispute. See May 6, 2013 Minute Order. After two status conferences, three rounds of briefing, two written opinions, and in camera review of a random sampling of the documents at issue, the time has finally come to put this dispute to rest. For the reasons set forth below, defendant Fireman's Fund Insurance Company ("FFIC") is entitled to no relief, and plaintiff Kenneth Feld is entitled to an award of attorney's fees.


Most of the factual and procedural details of this litigation-including this particular discovery dispute-have already been detailed at length in two written opinions. See Feld v. Fireman's Fund Ins. Co., 2013 WL 6730907 (D.D.C. Dec. 23, 2013) [ECF No. 30] ("Dec. 23 Mem. Op."); Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129 (D.D.C. 2013) [ECF No. 19]. This opinion picks up where the last one left off. After the Court's December 23, 2013 decision (granting in part and denying in part FFIC's second motion to compel), the parties submitted a proposed schedule for the remainder of discovery, which the Court adopted. See Jan. 24, 2014 Scheduling Order [ECF No. 33]. That Order included a January 31, 2014 deadline for Feld to complete his document production, including any additional documents to be produced in light of the Court's December 23, 2013 opinion.

On January 31, 2014-the day of Feld's production deadline-the parties also appeared for a status conference. Feld had apparently completed his document production on schedule, making a final production earlier that morning. But FFIC was not happy with what it received. FFIC argued that it was entitled to all of the outstanding documents that Feld continued to withhold as protected attorney work product, and requested that the Court review these documents in camera. In response, Feld's counsel represented that he had complied with the Court's orders in good faith, had reviewed the documents for a third time and had produced some additional documents in light of the Court's most recent opinion, and that the remaining documents in dispute were all properly withheld as protected attorney work product. Specifically, according to Feld's counsel, all of the withheld documents were prepared in anticipation of this insurance coverage litigation, rather than in anticipation of the underlying personal injury litigation. That distinction is critical, because Feld has partially waived the attorney-client and attorney work-product privileges for the underlying personal injury litigation by placing counsel's work "at issue" in filing this insurance coverage lawsuit. But for documents created in anticipation of the second lawsuit-this insurance coverage action-some protection remains. See Dec. 23 Mem. Op. at 20-21 ("Feld has not put the work of his attorneys on this litigation at issue in this case, so any privilege claims over those documents and communications remain valid.").

At the time of that most recent status conference, the parties had not yet exhausted the meet-and-confer process (Feld's final document production had come only hours earlier). So the Court had no basis to grant FFIC's request for in camera review of all the disputed documents (nor any basis to order their production). Afterwards, the Court issued another scheduling order, directing the parties to meet and confer in good faith in a final attempt to resolve or narrow their disagreement. See Jan. 31, 2014 Scheduling Order [ECF No. 34]. Because of the parties' history of difficulty in coming to negotiated solutions, the Court also provided an alternate route, issuing a briefing schedule to resolve any disagreements that might remain. See id.

That scheduling order also called for some specificity from FFIC as to the nature of any future objections to Feld's productions, ordering that

to the extent defendant seeks in camera review, or an order compelling production of any withheld documents, defendant shall specify, in a memorandum filed by not later than March 4, 2014: (1) the particular documents it believes have been improperly withheld, and (2) the factual and legal basis for that belief, with respect to each document....

Id. This language was deliberately included to encourage FFIC to remedy what had been a critical shortcoming in its previous filings: the lack of any specific objections to individual documents-or even groups of documents-that FFIC believed had been wrongfully withheld. See Dec. 23 Mem. Op. at 9. In the previous rounds of briefing-and at the January 31, 2014 status conference-FFIC's objections had been wholly categorical, and had called for Feld to produce (or the Court to review in camera) all of Feld's withheld documents, without offering much in support of that request, and without offering any specific explanation as to why certain documents were improperly withheld.

When the parties failed to negotiate a solution, they briefed the issue one last time. FFIC titled its filing "Documents Requested, " in which FFIC listed the documents it wanted from Feld. FFIC did not formally move to compel or request in camera review. FFIC also did not include any specific arguments "with respect to each document, " Jan. 31, 2014 Scheduling Order, or groups of documents. In response, Feld argued that FFIC was trying to relitigate issues that had already been decided in Feld's favor. The Court then ordered Feld to submit seven sample documents for in camera review, and the Court reviewed those documents.



This Court has already held (1) that the attorney work-product privilege protects the documents on Feld's privilege log, Dec. 23 Mem. Op. at 5-9; (2) that Feld's privilege log entries are sufficiently detailed, id. at 5-7; and (3) that there has been a partial waiver of the attorney work-product privilege, but only for documents prepared in anticipation of the underlying personal injury litigation, id. at 20-21. No party has moved to reconsider those rulings, and they remain binding. Taking these principles as established, the question presented here, therefore, is a narrow one: Has FFIC demonstrated that Feld's implementation of these holdings has been improper in some way? Because it has not, FFIC is entitled to no relief.

At the outset, FFIC has not actually filed a formal motion to compel or a motion for in camera review. Instead, FFIC's filing is titled "Documents Requested, " and contains no discussion of the remedy it is seeking. FFIC offered no discussion of the legal standard for in camera review, or for a motion to compel. See Pl.'s Resp. [ECF No. 38] at 2 n.2 ("Defendant has not requested an in camera review of any documents."). Nevertheless, FFIC did make an oral motion for in camera review at the January 31, 2014 status conference. And by titling its filing "Documents Requested, " it is clear that FFIC ...

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