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For various reasons, the following post is based strictly on the language of the Order at issue.
In a Third-Party Bad Faith failure-to-settle case, the Defendant Insurance Company served a subpoena for documents upon the injured claimant's attorney. (The attorney in question actually represented the personal representative of the estate in a wrongful death case, apparently, and all references in this post to "the injured claimant" will mean the estate in the underlying case as well). The subpoena apparently contained five paragraphs of requests for documents, but ...
[o]nly the first request is in dispute here, that is, [the Defendant's] request that [the injured claimant's attorney] produce "all calendars, planners, appointment books and similar documents that reflect the date(s) and time(s) of meetings, conferences and/or telephone calls with [the personal representative of the wrongful death estate, i.e., the client of the subpoenaed lawyer] between [certain dates].
Thompson v. Cincinnati Insurance Co., Download Thompson v. Cincinnati Insurance Co. (N.D. Fla. Case No. 3.10cv318, Order of Magistrate Judge Filed November 9, 2010) PUBLIC ACCESS, also published as 2010 WL 4667100 *1 (N.D. Fla. November 9, 2010)(authorized password required to access Westlaw). Note that the Federal Court online docket of this case ("Pacer") reflects that the attorney for the injured claimant filed an appeal of this Order on November 23, 2010.
The subpoenaed lawyer, a nonparty, objected. In part here pertinent, the lawyer raised the Attorney-Client Privilege as a reason to reject the Insurance Company's subpoena. Id. at *3. The United States Magistrate Judge in this case disagreed. The information which the Insurance Company subpoenaed, "that is, information relating to the dates and times [the injured claimant's lawyer] met, conferred, or otherwise communicated with" his client, "is clearly not protected by the attorney-client privilege, as such information does not disclose the substance of any communications" between the client and the attorney. Id. at *5. In addition, the Court held that the information was reasonably calculated in that case to lead to the discovery of admissible evidence. "Thus," the injured claimant's attorney's "motion to quash will be denied." Id.
That was not all, however. The Magistrate Judge further held that the injured claimant's attorney could if he chooses, but need not, comply with the Insurance Company's subpoena in this regard by producing the documentation demanded, "with appropriate redactions". The Magistrate Judge in this case also provided an alternative way to comply with the subpoena in this regard. The injured claimant's attorney "may provide the same information in another form, such as a typed list or other document that accurately reflects the information contained on his appointment books, calendars, and the like." Id.
Dennis Wall is Author of the leading book on Insurance Bad Faith, "Litigation and Prevention of Insurance Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement), and he has handled many Bad Faith Cases and Catastrophe Claims. Mr. Wall will speak on a panel at the American Conference Institute's Bad Faith Litigation Conference in Orlando, Florida on November 30, 2010. The author has been advised by the American Conference Institute that the ACI is continuing to offer its discount to readers of this Blog: Download ACI Advises Readers of the Insurance Claims and Issues and Insurance Claims and Bad Faith Law Blog are entitled to a discount.
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