What’s the score? Can’t tell with Senter pitching – looks like Bossier still holding bat

In any dispute involving discovery of evidence or privilege, our judicial system is left to rely, at least to some degree, on the good faith of the parties…it is crucial for this Court to be aware that State Farm’s attempt to silence damaging evidence against the company is not an isolated event or a rare occurrence, but is instead part of a concerted, corporate strategy to avoid, at any cost, damaging evidence against the insurer from ever seeing the light of day.

…In over a decade of bad faith litigation with State Farm and its defense counsel, Plaintiff’s counsel’s experience is that State Farm takes the “mad dog defense” strategy very seriously. Unfortunately, because many judges are reluctant to impose meaningful sanctions, State Farm’s strategy frequently pays off. Thur and O’Sullivan Amicus Curiae Brief

Yesterday, Judge Senter ruled on Bossier’s two Motions for Review of the U.S. Magistrate Judge’s Orders - denying both after considering  Plaintiff’s objections under the standard set forth in Fed. R. Civ. P. 72(a): any portion of the Magistrate Judge’s order shall be modified or set aside if it is found to be clearly erroneous or contrary to law.

The Court agrees with Defendant’s general assessment that Plaintiff’s…motions concentrate more on the substance of the underlying cause of action than on demonstrating how the Magistrate clearly erred or acted contrary to law. However, Plaintiff can hardly be criticized for pursuing further review, especially given the fact that the documents were submitted by Defendant (which had sole possession of them) for in camera inspection, meaning Plaintiff did not have access to them. The Magistrate in his…orders described in some detail the materials, but that is not the same as the documents themselves.

model Privilege Log created by SLABBED to illustrate content required by the Rules re: What’s the score? 0 – 2 on tail-wagging-dog Protective Orders.

This Court has conducted an independent assessment of the documents reviewed in camera, and finds that the Magistrate was correct in his legal conclusion… that “it is the nature of the materials at issue and the circumstances of the case which determine whether materials were prepared in anticipation of litigation rather than the date litigation actually commenced.”

If the Court required State Farm to submit a Privilege Log conforming with the content requirements of the Rules, the nature of the materials would not be as much of a mystery, if a mystery at all.  Nonetheless, the Court does not and Bossier’s counsel can only guess, as SLABBED reported in Closing the barn door after the horse is out does not cure the original violation – Bossier v State Farm

The Magistrate Judge’s order of August 10, 2009, concerns additional documents reviewed in camera that were subject the Magistrate’s order of June 5, 2009, but not provided to the Court pursuant to the order until after Plaintiff filed a Motion to Show Cause. These documents apparently relate to communications between State Farm individuals and attorneys hired by State Farm who are not litigation counsel in this case, for the time period between March 10, 2008 and April 25, 2008.

Judge Senter continued with the results of his in camera review of the email message; i.e. the material at issue:

In this case, the communications between State Farm and its counsel were triggered by correspondence from Plaintiff’s counsel to Defendant’s counsel exploring a resolution of the claims under the subject insurance policy. All e-mails arise from that initial and subsequent contact to see if a settlement could be reached, and Plaintiff’s counsel made clear the prospect of litigation in the event it could not.

Further, Plaintiff is in possession of materials in Defendant’s claim file, including reports issued by Defendant’s claim representative, Shellie Leverett. Plaintiff is entitled to explore the investigation that was conducted and the factors that were or were not considered by Defendant’s personnel in the evaluation of his claim, but may not obtain the documents involving counsel correctly found by the Magistrate Judge to be privileged and protected from disclosure. The Magistrate Judge’s decisions are neither clearly erroneous nor contrary to law.

At this point, Judge Senter repeats and expands a statement from his recent order modifying the Magistrate’s Order in part:

To repeat the essence of what was said in this Court’s…order involving another challenge to a decision by the Magistrate Judge, Defendant owes Plaintiff certain obligations under its insurance contract, including the implied duty of good faith and fair dealing, and the legal responsibility to fairly and thoroughly investigate and evaluate all claims and respond appropriately. The Court will address those issues in due course, especially with respect to Defendant’s…Motion for Partial Summary Judgment.

Although he denied Bossier’s motions and affirmed the Magistrate’s orders, he granted Bossier’s request regarding the material at issue:

Plaintiff’s request that the e-mails in question be filed in the record under seal is reasonable. Accordingly, IT IS ORDERED:…The material which is the subject matter of Plaintiff’s…motions for review shall be placed in the record of this cause of action under seal.

Although the Rule is that a Magistrate must have erred or acted contrary to law, Judge Senter appears to be making a great effort to strike a balance and only modify glaring errors or actions.

Magistrate Judge Walker followed Judge Senter’s with an Order illustrating the proverb he who hesitates is lost (paraphrased by Mae West as he who hesitates is a damned fool).  Had Walker considered either the Thur and O’Sullivan Amicus brief or the length of time since Bossier filed a motion to compel production of discovery documents, he might have landed somewhere other than between the Easter Bunny and the Tooth Fairy when he denied Bossier’s motion to show cause claiming:

that the latter emails were inadvertently left out of…[State Farm's]… first in camera submission and that it promptly acknowledged its mistake, that it submitted the omitted emails for review and has produced the emails ordered by the Court in the August 10, 2009 order.

According to the Amicus brief …This is the same excuse of “error” and “mistake” that State Farm uses every time it has been caught concealing or suppressing key evidence.

Search SLABBED for additional related posts:

ANOTHER request for review of a Walker Order – Bossier v State Farm

Spragins and Mullins launch State Farm’s new Gomer defense strategy hoping it will fly – right over Judge Walker’s head

What’s the score? 0 – 2 on tail-wagging-dog Protective Orders.

Judge Senter modifies Magistrate’s Order in part – Bossier v State Farm

One less secret – Motion for Sanctions filed in Bossier v State Farm

Trade Secrets? Only in Judge Walker’s world. A Bossier v State Farm Postscript

Bossier following compass – Agreed Order provides map

expedite is a plaintiff’s turtle and insurer’s hare

Bossier v State Farm – collateral damage or just really bad bad faith claims handling?