Liberty Corporate Capital Limited v. Steigleman

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Liberty Corporate Capital Limited, No. CV-19-05698-PHX-GMS 10 Plaintiff/Counterdefendant, ORDER 11 v. 12 Jill Marie Steigleman, 13 Defendant/Counterclaimant. [15] 16 Before the Court is Jill Marie Steigleman’s (“Defendant”) Motion to Compel 17 Discovery (Supplemental Brief re: Liberty’s Assertions of Work Product and Attorney18 Client Privilege) (Doc. 47), Defendant’s Motion to Modify Case Management Order (Third 19 Request) (Doc. 60), and Defendant’s Request for Leave to Correct and Supplement the 20 Record Relating to the Parties’ Discovery Dispute Conference of 12/1/21 (Doc. 69). 21 BACKGROUND 22 The Court assumes the parties are familiar with the facts and procedural history of 23 this case. On January 21, 2022, the Court held a Telephonic Pre-Motion Conference where 24 it also ruled from the bench on several pending discovery matters. This order memorializes 25 the Court’s rulings. 26 DISCUSSION 27 I. Attorney-Client Privilege 28 Under Arizona law, the attorney-client privilege shields any communication “made 1 to or by the lawyer for the purpose of securing or giving legal advice,” that is “made in 2 confidence” and “treated as confidential.” Roehrs v. Minn. Life Ins. Co., 228 F.R.D. 642 , 3 645 (D. Ariz. 2005); see also Ariz. Rev. Stat. § 12-2234 . Courts in Arizona find an implied 4 waiver of the attorney-client privilege when 5 (1) assertion of the privilege was a result of some affirmative act, such as filing suit [or raising an affirmative defense], by 6 the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by 7 making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to 8 information vital to his defense. 9 State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 56 , 13 P.3d 1169, 1173 (2000) (quoting 10 Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)). 11 In this case the claim denial letter to Defendant was written by Plaintiff’s attorney, 12 Mr. Mast. The claim denial letter was issued on Mr. Mast’s law firm letterhead and asserts 13 several legal conclusions to justify Plaintiff’s decision to deny Defendant’s claim. 14 (Doc. 47-5 at 2.) Because Mr. Mast signed and sent the claim denial letter on Plaintiff’s 15 behalf, Plaintiff affirmatively put his legal advice at issue in any litigation that might have 16 arisen out of its denial of Defendant’s claim; it cannot now “shield itself from disclosure 17 of the complete advice of counsel relevant to the handling of the claim.” State Farm, 199 18 Ariz. at 61, 13 P.3d at 1178 .1 Plaintiff has waived the attorney-client privilege as to all 19 pre-existing communications between Plaintiff and Mr. Mast pertaining to the decision to 20 deny Defendant’s claim. Goddard v. Frito-Lay, Inc., 273 F.R.D. 545, 555 (D. Ariz. 2011) 21 (holding that “[i]t is black letter law that [Plaintiff’s] intentional public disclosure of its 22 attorney’s legal opinion results in waiver of the attorney-client privilege . . . ‘as to all other 23 communications on the same subject.’” (quoting Hernandez v. Tanninen, 604 F.3d 1095 , 24 1100 (9th Cir. 2010)).2 25 1 That Mr. Mast signed and transmitted the claim denial letter makes this case distinguishable from the cases cited by Defendant. See, e.g, Safety Dynamics, Inc. v. Gen. 26 Star Indem. Co., No. CV-09-695-TUC-CKJ-DTF, 2013 WL 11299209 , at *4 (D. Ariz. Aug. 8, 2013) (finding no implied waiver when non-attorney author of denial of coverage 27 letter testified that he relied on advice of counsel in issuing the letter). 28 2 The Court understands Plaintiff to only assert the protections of the work-product doctrine as to communications that were made after the claim denial letter was issued. (Doc. 52 at 1 II. Motion to Modify Scheduling Order 2 Federal Rule of Civil Procedure 16 permits modification of the case management 3 order “only for good cause.” Fed. R. Civ. Proc. 16(b)(4). Good cause generally exists 4 when the moving party has been diligent in litigating its case. Johnson v. Mammoth Recs., 5 Inc., 975 F.2d 604, 609 (9th Cir. 1992). Here, Defendant seeks to modify certain discovery 6 deadlines in anticipation of the Court’s ruling on her discovery motion (Doc. 60 at 5.) 7 Because the Court has ordered Plaintiff to produce a limited number of communications to 8 Defendant that Defendant has not had access to before this order, and because a deposition 9 of Mr. Mast may be necessary, the Court finds that good cause exists to modify the 10 scheduling order on a limited basis, as set forth below. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Defendant’s Motion to Compel Discovery 13 (Supplemental Brief re: Liberty’s Assertions of Work Product and Attorney-Client 14 Privilege) (Doc. 47) is GRANTED. All documents relevant to the Court’s order shall be 15 produced no later than February 11, 2022. 16 IT IS FURTHER ORDERED that Defendant’s Motion to Modify Case 17 Management Order (Third Request) (Doc. 60) is GRANTED. The July 17, 2020 Amended 18 Case Management Order (Doc. 35), as modified by the Court’s June 24, 2021 Order 19 (Doc. 45) and July 9, 2021 Third Amended Case Management Order (Doc. 51), are further 20 modified as follows: 21 Event Current Deadline Amended Deadline 22 Deposition of Mr. Mast n/a March 11, 2022 [23] Plaintiff Disclosure of Experts September 17, 2021 April 1, 2022 [24] Defendant Disclosure of Experts October 22, 2021 April 29, 2022 [25] 26 Disclosure of Rebuttal Experts November 19, 2021 May 13, 2022 [27] 10–11.) Since the Court’s ruling pertains to only communications made in the course of 28 preparing the claim denial letter, it also finds the work product doctrine does not apply to these communications. ' Expert depositions December 17, 2021 June 10, 2022 Dispositive motions February 18, 2022 July 8, 2022 4 IT IS FURTHER ORDERED that all other deadlines and other case management procedures as identified in this Court’s July 17, 2020 Amended Case Management Order (Doc. 35), as modified by the Court’s June 24, 2021 Order (Doc. 45) and July 9, 2021 Third Amended Case Management Order (Doc. 51), remain in full force and effect. 8 IT IS FURTHER ORDERED that Defendant’s Request for Leave to Correct and 9 Supplement the Record Relating to the Parties’ Discovery Dispute Conference of 12/1/21 10) (Doc. 69) is GRANTED. I Dated this 26th day of January, 2022. 12 _ *) 3 A Whacrsay Fotos 14 Chief United States District Judge [28] -4-