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McAdam v. State National Insurance Company, Inc.

United States District Court, Ninth Circuit

November 1, 2013

ROBERT McADAM, Plaintiff,


MITCHELL D. DEMBIN, Magistrate Judge.

On September 3, 2013, Plaintiff filed the instant Motion to Compel Better Responses to Discovery. (ECF No. 32). Defendant responded in opposition on September 18, 2013. (ECF No. 37). The Court held a hearing on the motion on September 27, 2013. (ECF No. 39). Following the hearing the Court ordered as follows:

(1) Defendants shall review all documents, currently withheld, listed in any privilege log previously provided to Plaintiff. On or before October 2, 2013, Defendants shall produce any document previously withheld for the protection of work product, and any document that upon review Defendants deem are not subject to privilege. Defendants will, at that time, also produce a revised privilege log listing any documents that they intend to continue to withhold. (2) On October 7, 2013, Parties shall meet and confer regarding any documents that are not produced by Defendants on October 2. (3) Any document produced either formally, or informally at the meet and confer, will be subject to Fed.R.Evid. 502(d). Thus, any document produced will not constitute a waiver of privilege. (4) Should a dispute remain, regarding withheld documents, the Parties shall file a joint motion regarding such dispute on or before October 14, 2013. (5) Any documents that remain in dispute shall be delivered to chambers for in camera review on October 15, 2013.

( Id. )

On October 15, 2013, the parties filed a joint brief regarding items remaining in dispute. (ECF No. 40). Defendant submitted to chambers for in camera review documents withheld from production. Defendant asserted attorney-client privilege for some documents and also withheld documents regarding its re-insurance policy and policy reserves as "proprietary" and based upon relevance. On October 16, 2013, the Court held a telephonic conference with counsel for the parties inviting additional briefing regarding the withholding of the remaining documents. On October 28, 2013, each party submitted additional briefing. (ECF Nos. 42, 43).

At this juncture, Defendant has agreed to produce the policy it holds with its re-insurer, Wind River Reinsurance Company, agreed to produce reports between its claims administrator, Optimum Claims Service, Inc., and Wind River, and agreed to produce Optimum's claim handling guidelines. (ECF No. 43). Defendant redacted from the reports between Optimum and Wind River information regarding loss reserves. Defendant continues to assert attorney-client privilege for communications between it and attorneys from the law firm of Gordon & Rees, LLP, and between Gordon & Rees and marine surveyor Arnold & Arnold.

What remains is for the Court to rule upon the propriety of the assertion of attorney-client privilege regarding the withheld communications and the propriety of the withholding of information regarding the reserve established by Wind River regarding Plaintiff's claims.

Factual Summary

The following factual summary is from the Order of District Judge Barry Ted Moskowitz, on Defendant's Motion for Judgment on the Pleadings.

This action arises out of a "Hull and Machinery/Protection and Indemnity" Policy ("Policy") issued by Defendant to Plaintiff Robert McAdam for the term May 5, 2011 to May 5, 2012.
Plaintiff is the owner of the vessels Jessica M and Shirley B, both of which are insured under the Policy. In late 2011, Master Marine, Inc. ("MMI"), in Bayou La Batre, Alabama, performed repairs and upgrades on Jessica M and Shirley B to convert the vessels from shrimp trawlers to deep sea fishing boats. The repairs included work on the vessels' rudder and shaft assemblies.
On February 24, 2012, Shirley B's rudder snapped off while the vessel was fishing near New Zealand. Jessica M, which was 70 miles away, came to provide assistance and towed Shirley B to port in Tauranga, New Zealand. Defendant directed the Shirley B to a repair yard in Whangarei, New Zealand.
Repairs totaling $162, 283.74 were made on the Shirley B. Defendant's surveyor determined that the loss of the rudder was caused by faulty work of MMI. Defendant reimbursed Plaintiff $114, 375.07 for the repairs, deducting amounts for repairs that it deemed betterment.
The Jessica M also underwent repairs in New Zealand. The Captain of the Jessica M noticed "play" in the rudder while towing the Shirley B, and according to Plaintiff, subsequent testing and inspection showed that Jessica M suffered from the same repair defects as the Shirley B - i.e., welds that were ...

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