Leung v. UNUM Life Insurance Company of America

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD J. LEUNG, MD, Case No.: 22-cv-00767-W-JLB 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PLAINTIFF’S MOTION TO COMPEL FURTHER 14 UNUM LIFE INSURANCE COMPANY RESPONSES TO PLAINTIFF’S OF AMERICA, 15 REQUEST FOR PRODUCTION OF Defendant. DOCUMENTS (SET FOUR); 16 PLAINTIFF’S SPECIAL 17 INTERROGATORIES (SET TWO); AND PLAINTIFF’S REQUESTS FOR 18 ADMISSION (SET ONE) FROM 19 UNUM LIFE INSURANCE COMPANY OF AMERICA 20 21 [ECF No. 41] 22 23 Before the Court is a motion to compel filed by Plaintiff Richard J. Leung, M.D. 24 (“Plaintiff”). (ECF No. 41.) Plaintiff seeks to compel Defendant Unum Life Insurance 25 Company of America (“Defendant”) to provide further responses to (1) Plaintiff’s Requests 26 for Production of Documents, Set Four, (2) Plaintiff’s Special Interrogatories, Set Two, 27 and (3) Plaintiff’s Requests for Admission, Set One. (ECF No. 41.) Defendant filed an 28 opposition. (ECF No. 43.) 1 For the reasons set forth below, the Court GRANTS IN PART and DENIES IN 2 PART Plaintiff’s motion to compel. 3 I. BACKGROUND 4 This lawsuit arises from a dispute over benefits under several disability income 5 insurance policies Defendant issued to Plaintiff, who claims to be totally disabled as of 6 May 2020 due to purported accidents occurring as far back as 1982. (ECF No. 1-3 at 2– 7 11 (“Compl.”) at ¶¶ 1–3, 30–32, 38; see also ECF No. 26 at 2.) Under Plaintiff’s policies, 8 benefits are payable to up to the longer of 24 months or age 65 for disabilities due to 9 sickness, and for an insured’s lifetime for disabilities due to accident if disability starts 10 prior to the age 65 policy anniversary. (ECF No. 26 at 2.) Plaintiff, prior to his 65th 11 birthday, submitted a claim to Defendant, contending his disability resulted from accidents 12 which caused pain, numbness, and loss of mobility in his lumbar and cervical spine. (Id.; 13 see also Compl. ¶ 31.) Defendant determined Plaintiff’s claim was due to sickness and 14 paid the maximum benefits for 24 months. (ECF No. 26 at 2; see also Compl. ¶¶ 5, 34, 15 39.) In his Complaint, Plaintiff brings claims against Defendant for breach of contract and 16 breach of the implied covenant of good faith and fair dealing, disputing Defendant’s claim 17 determination. (Compl. at 7–10.) Plaintiff maintains he is totally disabled due to accidents 18 and entitled to continued benefits for his lifetime. (Id.) 19 In his motion, Plaintiff seeks to compel further responses to: (1) Requests for 20 Production (“RFP”) Nos. 55 and 56 in Plaintiff’s Requests for Production, Set Four; (2) 21 Special Interrogatories Nos. 15, 16, and 17 in Plaintiff’s Special Interrogatories, Set Two; 22 and (3) Requests for Admission (“RFA”) Nos. 2, 3, and 4 in Plaintiff’s Requests for 23 Admissions, Set One. (ECF No. 41 at 3–5.) The requests at issue and responses thereto 24 are as follows: 25 RFA No. 2: Admit that the ALBERTSTONE’s REPORT has not been 26 reviewed or analyzed by UNUM. 27 Response: Defendant objects to this request on the following grounds: (1) it 28 is vague, ambiguous, and unintelligible, particularly as to “reviewed or 1 analyzed” and “UNUM”; (2) it is overbroad as to “UNUM”; and (3) it seeks information protected by the attorney-client privilege, work product doctrine, 2 and litigation privileges. Subject to and without waiving the foregoing 3 objections, Defendant is unable to admit or deny the request given the broad definition of “UNUM,” which is defined as “Defendant UNUM LIFE 4 INSURANCE COMPANY OF AMERICA, and all present and former agents, 5 divisions, subsidiaries, successors and assigns, officers, directors, employees, investigators, consultants, advisors, accountants, attorneys, and all other 6 persons or entities acting on behalf of UNUM LIFE INSURANCE 7 COMPANY OF AMERICA”). The request invades the attorney-client and/or attorney work product privileges and is vague and ambiguous and overbroad 8 as phrased. 9 RFA No. 3: Admit that the ALBERSTONE REPORT has not been added to 10 the UNUM claim file. 11 Response: Defendant objects to this request on the following grounds: (1) it 12 is vague, ambiguous, and unintelligible, particularly as to “UNUM”; (2) it is overbroad as to “UNUM”; (3) it seeks information that is not relevant to the 13 subject matter of this litigation; and (4) it seeks information protected by the 14 attorney-client privilege, work product doctrine, and litigation privilege. 15 RFA No. 4: Admit that YOU evaluated the ALBERSTONE REPORT as part 16 of your ongoing duty to evaluate the Plaintiff Richard Leung, M.D.’s claim for benefits at issue in this litigation. 17 Response: Defendant objects to this request on the following grounds: (1) it 18 is vague, ambiguous, and unintelligible, particularly as to “YOU” and “as part 19 of your ongoing duty to evaluate”; (2) it is overbroad as to “YOU”; (3) it seeks information protected by the attorney-client privilege, work product doctrine, 20 and litigation privilege; and (4) it calls for a legal conclusion. Subject to and 21 without waiving the foregoing objections, Defendant is unable to admit or deny the request given the broad definition of “YOU,” which is defined as 22 “Defendant UNUM LIFE INSURANCE COMPANY OF AMERICA, and all 23 present and former agents, divisions, subsidiaries, successors and assigns, officers, directors, employees, investigators, consultants, advisors, 24 accountants, attorneys, and all other persons or entities acting on behalf of 25 UNUM LIFE INSURANCE COMPANY OF AMERICA.” The request invades the attorney-client and/or attorney work product privileges and is 26 vague and ambiguous and overbroad as phrased. 27 28 (ECF No. 41-4.) 1 Special Interrogatory No. 15: Identify the date the ALBERSTONE REPORT was made part of UNUM’s claim file in this matter. 2 3 Response: Defendant objects to this request on the following grounds: (1) it is vague, ambiguous, and unintelligible, particularly as to “UNUM” and “as 4 part of UNUM’s claim file”; (2) it is overbroad as to “UNUM”; and (3) it 5 seeks information protected by the attorney-client privilege, work product doctrine, and litigation privileges. 6 Special Interrogatory No. 16: Identify all DOCUMENTS that have been 7 added to the UNUM claim file in this matter from February 17, 2022 to the 8 present. 9 Response: Defendant incorporates its general objections herein and further 10 objects to this request on the following grounds: (1) to the extent Plaintiff attempts to define the nature and scope of the information contained in 11 Defendant’s claim file; (2) it is overly broad and unduly burdensome; (3) to 12 the extent it seeks information/documents which is/are not relevant to the claims or defenses of any party to this action; (4) to the extent it seeks 13 documents that constitute or contain confidential and/or proprietary 14 information; and (5) it seeks information protected by the attorney-client privilege, work product doctrine, and litigation privileges. 15 Special Interrogatory No. 17: If YOUR response to any of the concurrently 16 served Requests for Admissions are anything other than an unqualified 17 admission, state all facts upon which YOU base YOUR response and identify all DOCUMENTS and witnesses upon which YOU base YOUR response. 18 19 Response: Defendant incorporates its general objections herein, the objections in its responses to Plaintiff’s Requests for Admissions (Set One), 20 and further objects to this request on the following grounds: (1) it is 21 compound; (2) it is overly broad and unduly burdensome; (3) it seeks information/documents which is/are not relevant to the claims or defenses of 22 any party to this action nor is proportional to the needs of the case pursuant to 23 FRCP 26(b)(1) considering the amount in controversy, the importance of the issues at stake in the action, and the importance of the discovery sought in 24 resolving the issues; (4) to the extent it seeks documents that constitute or 25 contain confidential and/or proprietary information; and (5) it seeks information protected by the attorney-client privilege, work product doctrine, 26 and litigation privileges. 27 Subject to and without waiving the foregoing objections, Defendant 28 responds as follows: 1 Request for Admission No. 1 – “Admit that YOU do not have any DOCUMENT(s) that identify and/or list which DOCUMENTS YOU 2 provided to Dane Street, LLC regarding Dr. Leung.” Defendant denies that 3 documents do not exist that identify documents provided to Dane Street, LLC pertaining to Dr. Leung’s claim. Defendant refers Plaintiff to the claim file 4 produced in this action, including the medical reviews from Steven Milos, 5 M.D. and Marvin Friedlander, M.D. which identify documents that Unum provided to Dane Street that are identified or discussed in their reports. 6 Defendant refers Plaintiff to Dane Street for a list of all documents provided 7 to Drs. Milos and Friedlander pertaining to Plaintiff’s claim to the extent such a list exists that Dane Street is able to produce. 8 9 Request for Admission No. 2 – “Admit that the ALBERTSTONE’s REPORT has not been reviewed or analyzed by UNUM” - Defendant is 10 unable to admit or deny the request given the broad definition of “UNUM,” 11 which is defined as “Defendant UNUM LIFE INSURANCE COMPANY OF AMERICA, and all present and former agents, divisions, subsidiaries, 12 successors and assigns, officers, directors, employees, investigators, 13 consultants, advisors, accountants, attorneys, and all other persons or entities acting on behalf of UNUM LIFE INSURANCE COMPANY OF 14 AMERICA”). The request invades the attorney-client and/or attorney work 15 product privileges and is vague and ambiguous and overbroad as phrased. 16 Request for Admission No. 3 – “Admit that the ALBERSTONE REPORT has not been added to the UNUM claim file.” The request invades 17 the attorney-client and/or attorney work product privileges and is vague and 18 ambiguous and overbroad as phrased. 19 Request for Admission No. 4 – “Admit that YOU evaluated the 20 ALBERSTONE REPORT as part of your ongoing duty to evaluate the Plaintiff Richard Leung, M.D.’s claim for benefits at issue in this litigation.” 21 - Defendant is unable to admit or deny the request given the broad definition 22 of “YOU,” which is defined as “Defendant UNUM LIFE INSURANCE COMPANY OF AMERICA, and all present and former agents, divisions, 23 subsidiaries, successors and assigns, officers, directors, employees, 24 investigators, consultants, advisors, accountants, attorneys, and all other persons or entities acting on behalf of UNUM LIFE INSURANCE 25 COMPANY OF AMERICA.” The request invades the attorney-client and/or 26 attorney work product privileges and is vague and ambiguous and overbroad as phrased. 27 28 (ECF No. 41-3.) 1 RFP No. 55: Produce all DOCUMENTS that have been added to the UNUM claim file from February 17, 2022, to the present. 2 3 Response: Defendant incorporates its general objections herein and further objects to this request on the following grounds: (1) to the extent Plaintiff 4 attempts to define the nature and scope of the information contained in 5 Defendant’s claim file; (2) it is overly broad; (3) to the extent it seeks information/documents which is/are not relevant to the claims or defenses of 6 any party to this action nor reasonably calculated to lead to the discovery of 7 admissible evidence; (4) to the extent it seeks documents that constitute or contain confidential and/or proprietary information; and (5) it seeks 8 information protected by the attorney-client and/or attorney work product 9 privileges. 10 RFP No. 56: If YOUR response to any of the concurrently served Request for Admissions served simultaneously with these Requests for Production, is 11 anything other than an unqualified admission, produce all DOCUMENTS that 12 support YOUR response. 13 Response: Defendant incorporates its general objections herein, the 14 objections in its responses to Plaintiff’s Requests for Admissions (Set One), and further objects to this request on the following grounds: (1) it is 15 compound; (2) it is overly broad and unduly burdensome; (3) it seeks 16 information/documents which is/are not relevant to the claims or defenses of any party to this action nor is proportional to the needs of the case pursuant to 17 FRCP 26(b)(1) considering the amount in controversy, the importance of the 18 issues at stake in the action, and the importance of the discovery sought in resolving the issues; (4) to the extent it seeks documents that constitute or 19 contain confidential and/or proprietary information; and (5) it seeks 20 information protected by the attorney-client and/or attorney work product privileges. 21 Subject to and without waiving the foregoing objections, Defendant 22 responds as follows: Defendant refers Plaintiff to the claim file produced in 23 this action, including the medical reviews from Steven Milos, M.D. and Marvin Friedlander, M.D. which identify documents that Unum provided to 24 Dane Street that are identified or discussed in their reports. Defendant refers 25 Plaintiff to Dane Street for a list of all documents provided to Drs. Milos and Friedlander pertaining to Plaintiff’s claim to the extent such a list exists that 26 Dane Street is able to produce. 27 28 (ECF No. 41-2.) 1 II. LEGAL STANDARD 2 The Federal Rules of Civil Procedure authorize parties to obtain discovery of any 3 nonprivileged information discoverable under Rule 26 if it is (1) relevant, and (2) 4 proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1), as amended 5 in 2015, provides that parties— 6 may obtain discovery regarding any nonprivileged matter that is relevant to 7 any party’s claim or defense and proportional to the needs of the case, 8 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the information, the parties’ 9 resources, the importance of the discovery in resolving the issues, and whether 10 the burden or expense of the proposed discovery outweighs its likely benefit. 11 Id. 12 Evidence must be “relevant to any party’s claim or defense” to fall within the scope 13 of permissible discovery. Id. The 2015 amendment to Rule 26(b) deleted the phrase 14 “reasonably calculated to lead to the discovery of admissible evidence” because it was 15 often misconstrued to define the scope of discovery and had the potential to “swallow any 16 other limitation.” Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015 amendment; 17 see also San Diego Unified Port Dist. v. Nat’l Union Fire Ins. Co. of Pittsburg, PA, No. 18 15CV1401-BEN-MDD, 2017 WL 3877732, at *1 (S.D. Cal. Sept. 5, 2017). The 19 amendment replaced this phrase with the statement that information “need not be 20 admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1) advisory committee’s 21 notes to 2015 amendment. 22 Information must also be “proportional to the needs of the case” to fall within the 23 scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). When analyzing the 24 proportionality of a party’s discovery requests, a court should consider the importance of 25 the issues at stake in the action, the amount in controversy, the parties’ relative access to 26 the information, the parties’ resources, the importance of the discovery in resolving the 27 issues, and whether the burden or expense of the proposed discovery outweighs its likely 28 benefit. Id. 1 Pursuant to Federal Rule of Civil Procedure 33, a party may serve an interrogatory 2 on another party relating to any matter that may be inquired into under Rule 26(b). Fed. 3 R. Civ. P. 33(a)(2). Pursuant to Federal Rule of Civil Procedure 34, a party may request 4 the production of documents from another party within the scope of Rule 26(b). Fed. R. 5 Civ. P. 34(a). Lastly, pursuant to Federal Rule of Civil Procedure 36, a party may serve 6 on another party a written request to admit “the truth of any matters within the scope of 7 Rule 26(b)(1) relating to . . . facts, the application of law to fact, or opinions about either; 8 and . . . the genuineness of any describe documents.” Fed. R. Civ. P. 36(a)(1)(A)–(B). If 9 a party fails to answer an interrogatory pursuant to Rule 33 or fails to produce documents 10 pursuant to Rule 34, the propounding party may bring a motion to compel. See Fed. R. 11 Civ. P. 37(a). The propounding party may also move under Rule 36 “to determine the 12 sufficiency of an answer or objection.” Fed. R. Civ. P. 36(a)(6). 13 III. DISCUSSION 14 A. Parties’ Arguments 15 Plaintiff claims that he has continued to produce evidence supporting his disability 16 claim since the filing of this case. (ECF No. 41 at 2.) Through discovery in this case, 17 including Plaintiff’s Rule 26 disclosures, Plaintiff has produced thousands of documents, 18 including updated medical records and Social Security Administration records, as well as 19 documents from the Department of Workers’ Compensation and Labor. (Id.) On 20 August 15, 2022, Plaintiff also submitted to defense counsel a report from neurosurgeon 21 Dr. Carey Alberstone, dated August 9, 2022. (Id.) Plaintiff argues that the discovery at 22 issue in the present motion is aimed at determining whether these documents have been 23 included in Plaintiff’s claim file, and if so, what actions, if any, Defendant and its claims 24 handlers have taken regarding this new information. (Id. at 3.) Plaintiff contends this 25 information is relevant to the determination of whether Defendant violated its ongoing duty 26 of good faith and fair dealing and to the determination of punitive damages. (Id. at 6–7.) 27 In opposition, Defendant argues that the discovery seeks “irrelevant and privileged 28 post-litigation communications and activity.” (ECF No. 43 at 2.) Defendant contends that 1 “when a claim has been closed by an insurer and the claimant has chosen to file a lawsuit, 2 the ongoing duty of good faith and fair dealing may be satisfied through the process of 3 litigation, including discovery, investigation, [and the] retention of experts[.]” (Id.) 4 Defendant argues that “[t]here is no obligation for a claim that is being litigated to proceed 5 on two different tracks—by a claims representative and in litigation by counsel.” (Id.) 6 Lastly, Defendant argues that Plaintiff’s discovery is “moot and cumulative” as Plaintiff 7 has already had an opportunity to address the issues in discovery. (Id. at 3.) Defendant 8 states that “Plaintiff asked these questions in deposition and his retained insurance expert 9 has already rendered opinions with the understanding that Dr. Alberstone’s report and 10 additional other records obtained in discovery were not reviewed post-litigation by 11 [Defendant’s] claim personnel.” (Id.) 12 B. Legal Standards 13 1. Implied Covenant of Good Faith and Fair Dealing 14 Under California law, all insurance contracts contain an implied covenant of good 15 faith and fair dealing. Wilson v. 21st Century Ins. Co., 42 Cal. 4th 713, 720 (2007). “A 16 breach of the implied covenant of good faith and fair dealing involves something beyond 17 the breach of the contractual duty itself, and it has been held that bad faith implies unfair 18 dealing rather than mistaken judgment.” See Chateau Chamberay Homeowners Ass’n v. 19 Associated Int’l Ins. Co., 90 Cal. App. 4th 335, 345 (2001) (internal quotations and citation 20 omitted). “Thus, an insurer’s bad judgment or negligence is insufficient to establish bad 21 faith; instead, the insurer must engage in a conscious and deliberate act, which unfairly 22 frustrates the agreed common purposes and disappoints the reasonable expectations of the 23 other party thereby depriving that party of the benefits of the agreement.” Nieto v. Blue 24 Shield of Cal. Life & Health Ins. Co., 181 Cal. App. 4th 60, 86 (2010) (citation and internal 25 quotation marks omitted). 26 To establish bad faith, a plaintiff must demonstrate that the insurer “acted 27 unreasonably or without proper cause.” Chateau Chamberay, 90 Cal. App. 4th at 347. 28 “[T]he reasonableness of the insurer’s decisions and actions must be evaluated as of the 1 time that they were made; the evaluation cannot fairly be made in the light of subsequent 2 events that may provide evidence of the insurer’s errors.” Id.; see also Maynard v. State 3 Farm Mut. Auto. Ins. Co., 499 F. Supp. 2d 1154, 1160 (C.D. Cal. 2007) (citation and 4 internal quotation marks omitted) (“[I]n evaluating a genuine dispute, it is essential that no 5 hindsight test be applied.”). 6 “[W]here there is a genuine issue as to the insurer’s liability under the policy for the 7 claim asserted by the insured, there can be no bad faith liability imposed on the insurer for 8 advancing its side of that dispute.” Id. (citations omitted). In other words, “an insurer 9 denying or delaying the payment of policy benefits due to the existence of a genuine dispute 10 with its insured as to the existence of coverage liability or the amount of the insured’s 11 coverage claim is not liable in bad faith even though it might be liable for breach of 12 contract.” Id. (citing Fraley v. Allstate Ins. Co., 81 Cal. App. 4th 1282, 1292 (2000)). 13 In contrast, “where an insurer denies coverage[,] but a reasonable investigation 14 would have disclosed facts showing the claim was covered, the insurer’s failure to 15 investigate breaches its implied covenant.” Jordan v. Allstate Ins. Co., 148 Cal. App. 4th 16 1062, 1074 (2007). “The insurer cannot claim a ‘genuine dispute’ regarding coverage in 17 such cases because, by failing to investigate, it has deprived itself of the ability to make a 18 fair evaluation of the claim.” Id. (citation omitted). 19 Accordingly, in a bad faith claim based on a failure to investigate, “it is essential that 20 an insurer fully inquire into possible bases that might support the insured’s claim before 21 denying it.” Wilson, 42 Cal. 4th at 721 (internal quotation marks omitted) (quoting Egan 22 v. Mut. of Omaha Ins. Co., 24 Cal. 3d 809, 819 (1979)). “A trier of fact may find that an 23 insurer acted unreasonably if the insurer ignores evidence available to it which supports 24 the claim. The insurer may not just focus on those facts which justify denial of the claim.” 25 Id. (quoting Mariscal v. Old Republic Life Ins. Co., 42 Cal. App. 4th 1617, 1623 (1996)); 26 see also Shade Foods, Inc. v. Innovative Prod. Sales & Mktg., Inc., 78 Cal. App. 4th 847, 27 880 (2000) (an “insurer’s early closure of an investigation and unwillingness to reconsider 28 a denial when presented with evidence of factual errors will fortify a finding of bad faith”). 1 In a bad faith action, punitive damages are available “if in addition to proving a 2 breach of the implied covenant of good faith and fair dealing proximately causing actual 3 damages, the insured proves by clear and convincing evidence that the insurance company 4 itself engaged in conduct that is oppressive, fraudulent, or malicious.” PPG Indus., Inc. v. 5 Transamerica Ins. Co., 20 Cal. 4th 310, 319 (1999); see also Amadeo v. Principal Mut. 6 Life Ins. Co., 290 F.3d 1152, 1164 (9th Cir. 2002); Cal. Civ. Code § 3294(a). An insurer’s 7 “careless disregard for the rights of its insured and an obstinate persistence in an ill-advised 8 initial position . . . might conceivably support” an award of punitive damages. Shade 9 Foods, Inc., 78 Cal. App. 4th at 892. 10 2. Attorney-Client Privilege 11 California law governs the attorney-client-privilege issue in this diversity case. See 12 Star Ed., Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 7 F.3d 856, 859 (9th Cir. 1993); Fed. 13 R. Evid. 501. The privilege protects “confidential communication[s] between client and 14 lawyer.” Cal. Evid. Code § 954. “If a ‘confidential communication between client and 15 lawyer’ exists, the client has a privilege protecting disclosure, and the attorney has an 16 obligation to refuse disclosure unless otherwise instructed by the client.” Scripps Health 17 v. Super. Ct., 109 Cal. App. 4th 529, 533 (2003) (internal citations omitted). 18 “The party claiming the privilege has the burden of establishing the preliminary facts 19 necessary to support its exercise, i.e., a communication made in the course of an attorney- 20 client relationship.” Costco Wholesale Corp. v. Super. Ct., 47 Cal. 4th 725, 733 (2009). 21 Once these foundational facts have been presented, “the communication is presumed to 22 have been made in confidence and the opponent of the claim of privilege has the burden of 23 proof to establish that the communication was not confidential, or that an exception exists.” 24 State Farm Fire & Cas. Co. v. Super. Ct., 54 Cal. App. 4th 625, 639 (1997) (citations and 25 internal quotation marks omitted); Cal. Evid. Code § 917(a). 26 The attorney-client privilege “only protects disclosure of communications between 27 the attorney and the client; it does not protect disclosure of underlying facts which may be 28 referenced within a qualifying communication.” State Farm Fire & Cas. Co., 54 Cal. App. 1 4th at 639. For example, it would not be a violation of the attorney-client privilege to 2 divulge that certain documents exist, but “to divulge a conversation to that effect or the fact 3 that such information had been delivered to an attorney, would violate the privilege.” Id. 4 (citing People v. Lee, 3 Cal. App. 3d 514, 526 (1970) (“. . . the fact that the client delivered 5 . . . evidence to his attorney may be privileged, the physical object [or information] itself 6 does not become privileged merely by reason of its transmission to the attorney”)). In 7 addition, the privilege does not protect independent facts related to a communication, i.e., 8 “that a communication took place, and the time, date and participants in the 9 communication.” Id. 10 C. Analysis 11 Defendant issued its final decision on Plaintiff’s claim, after several appeals, on 12 September 23, 2021. (ECF No. 43 at 5.) On February 17, 2022, Plaintiff requested further 13 appeal based on new MRI scans, dated December 15, 2021, and U.S. Department of Labor 14 documents. (Compl. ¶44.) On February 18, 2022, Defendant advised Plaintiff that it had 15 declined his request for another appeal review of its claim determination. (Id. ¶45.) 16 Thereafter, this action was commenced in California state court on April 25, 2022.1 17 Plaintiff claims he has continued to produce extensive evidence supporting his 18 disability claim since the filing of this case through the mechanisms of Rule 26 disclosures 19 and discovery. (ECF No. 41 at 2.) Plaintiff contends that the discovery at issue in the 20 present motion is aimed at determining whether these documents have been included in 21 Plaintiff’s claim file, and if so, what actions, if any, Defendant and its claims handlers have 22 taken regarding this new information. (Id. at 3.) Plaintiff argues that this information is 23 24 25 1 Defendant’s retained expert indicates that Plaintiff’s claim was officially “closed” 26 on June 28, 2022. (See ECF No. 43-4 at 4.) The expert contends that “once the claimant 27 decides to pursue a decision from a court of competent jurisdiction it is not industry practice or appropriate for the claim department to reopen a closed claim and to actively manage a 28 1 relevant to determining whether Defendant has met its continuing duty of good faith and 2 fair dealing and whether punitive damages are appropriate. (Id. at 6–7.) 3 There is no dispute that documents evidencing Defendant’s handling of Plaintiff’s 4 claim prior to the initiation of this lawsuit are relevant, see 2,022 Ranch, LLC v. Super. Ct., 5 113 Cal. App. 4th 1377, 1396 (2003), disapproved of on other grounds by Costco 6 Wholesale Corp., 47 Cal. 4th at 739 (noting the “importance of claims files as evidence in 7 bad faith actions” because they are “a unique, contemporaneously prepared history of the 8 company’s handling of the claim”), or that Defendant has produced Plaintiff’s claim file in 9 this litigation (ECF Nos. 41-3 at 6 (referring Plaintiff to the claim file produced in this 10 action); 43-5 at 3 (Plaintiff’s expert reviewed the claim file)). 11 The question before the Court is whether Plaintiff is entitled to certain discovery 12 regarding Defendant’s investigation into Plaintiff’s claim after the commencement of 13 litigation. Defendant states that it is continually assessing the information gathered during 14 discovery in this litigation. (ECF No. 43 at 2.) Defendant further states that it is currently 15 investigating Plaintiff’s claim “through the discovery process.” (Id. at 7.) If its 16 investigation during litigation warrants a change in course, Defendant represents that it 17 could overturn an adverse decision “through this [litigation] process.” (Id. at 8.) Thus, 18 Defendant argues it is satisfying its ongoing duty of good faith and fair dealing through the 19 process of litigation. (Id.) Defendant further argues that Plaintiff requests privileged 20 information as he seeks Defendant’s privileged review of information produced in this 21 lawsuit and communications between Defendant’s in-house and outside counsel. (Id. at 7– 22 9.) The Court will address each discovery request at issue below. 23 1. RFA No. 2 24 In RFA No. 2, Plaintiff asks Defendant to admit that the Alberstone Report, which 25 was produced in this litigation, has not been reviewed or analyzed by “UNUM.” (See ECF 26 Nos. 41-4; 43 at 7, n. 2.) Plaintiff initially defined “YOU”, “YOUR”, or “UNUM” to mean 27 Defendant Unum Life Insurance Company of America, and all present and former agents, 28 divisions, subsidiaries, successors and assigns, officers, directors, employees, 1 investigators, consultants, advisors, accountants, attorneys, and all other persons or entities 2 acting on behalf of Defendant Unum Life Insurance Company of America. (See ECF No. 3 43 at 6 n.1.) However, Plaintiff subsequently narrowed his discovery requests, including 4 the definitions of “YOU”, “YOUR”, and “UNUM,” to state that he is not seeking attorney- 5 client privileged or attorney work product documents or information. (Id. at 7.)2 6 In light of this narrowing, Plaintiff contends that he is not asking Defendant to 7 divulge or produce attorney-client privileged communications or documents and/or 8 attorney work product. (ECF No. 41 at 3.) Rather, Plaintiff claims he is only asking 9 Defendant to confirm or deny “that the subsequently obtained documents were made part 10 of [Plaintiff’s] claim file, that they either [] have or have not been reviewed by [Defendant] 11 and/or its claims handlers, and, if they have been reviewed, that [Defendant] produce any 12 claim notes from [Defendant’s] claim handlers, or other responsive non-privileged 13 documents, regarding the additional documents.” (Id.) Plaintiff contends that such 14 discovery is not privileged. 15 In support of this contention, Plaintiff cites 2,002 Ranch. (Id.)3 In 2,022 Ranch, a 16 California Court of Appeal held that evidence reflecting the factual investigation of an 17 insured’s claim, even if done by the insurance company’s in-house attorneys, was not 18 19 2 Given this clarification, the Court assumes for purposes of this Order that Plaintiff 20 no longer defines “YOU”, “YOUR”, and “UNUM” to include outside counsel. 21 3 It is not entirely clear for what proposition Plaintiff cites to 2,002 Ranch. The pin cite he uses would seem to point the Court to language in support of the uncontroversial 22 proposition that the claims file is highly relevant in any insurance bad faith case against a 23 carrier. 2,002 Ranch, 113 Cal. App. 4th at 1396. However, Plaintiff’s citation to the 2,002 Ranch case follows his broader, and more specific, assertion that the court should grant his 24 request and compel Defendant to “confirm or deny that the subsequently obtained 25 documents were made part of Dr. Leung’s claim file, that they either [] have or have not been reviewed by Unum and/or its claims handlers, and, if they have been reviewed, that 26 Unum produce any claim notes from the Unum claim handlers, or other responsive non- 27 privileged documents, regarding the additional documents.” (ECF No. 41 at 3.) The following discussion assumes that Plaintiff is relying on 2,002 Ranch decision for this more 28 1 privileged, as the attorneys were serving as claim adjusters in performing the investigation. 2 2,002 Ranch, 113 Cal. App. 4th at 1397–98. The court also held that communications by 3 the attorneys that reflected the rendering of legal advice were attorney-client privileged. 4 Id. at 1397. The court ultimately ordered the trial court to review each of the 5 communications to determine their dominant purpose. Id. 6 However, the California Supreme Court in Costco Wholesale Corp. disapproved of 7 2,022 Ranch, in part. The Costco Wholesale Corp. court found that the 2,022 Ranch court 8 erred in distinguishing between communications reporting the results of factual 9 investigations and those reflecting the rendering of legal advice and in requiring the trial 10 court to review each communication to determine its dominant purpose. Costco Wholesale 11 Corp., 47 Cal. 4th at 739. The Costco Wholesale Corp. court held that the “proper 12 procedure would have been for the trial court first to determine the dominant purpose of 13 the relationship between the insurance company and its attorneys, i.e., was it one of 14 attorney-client or one of claims adjuster-insurance corporation[.]” Id. at 739–40. “If the 15 trial court determined the communications were made during the course of an attorney- 16 client relationship, the communications, including any reports of factual material, would 17 be privileged, even though the factual material might be discoverable by some other 18 means.” Id. at 740. 19 Here, there does not appear to be any dispute that once Defendant retained outside 20 counsel for purposes of this litigation, an attorney-client relationship was established. See 21 2,002 Ranch, 113 Cal. App. 4th at 1398 (“The hiring of outside counsel for a specific 22 project usually indicates that a client is seeking legal advice.”). As such, the attorney-client 23 privilege attaches to all confidential communications between Defendant and its outside 24 counsel and bars discovery of communications between them, irrespective of whether the 25 communications include unprivileged material. See Costco Wholesale Corp., 47 Cal. 4th 26 at 734. In California, the attorney-client privilege “encompass[es] not only oral or written 27 statements, but additionally actions, signs, or other means of communicating information.” 28 Mitchell v. Super. Ct., 37 Cal. 3d 591, 600 (1984). In this regard, the privilege covers the 1 “actual fact of [] transmission” since discovery of a transmission “might very well reveal 2 the transmitter’s intended strategy.” Id. 3 With respect to RFA No. 2, Plaintiff claims he provided Dr. Alberstone’s report to 4 outside defense counsel as part of this litigation for further transmission to Defendant. 5 (ECF No. 41 at 2.) However, RFA No. 2 presupposes that outside defense counsel did 6 provide Dr. Alberstone’s report to Defendant as part of this litigation, which would be a 7 privileged communication in the course of an attorney-client relationship. See Mitchell, 37 8 Cal. 3d at 600 (the attorney-client privilege encompasses “actions, signs, or other means of 9 communicating information,” including the fact of transmission); see also Wellpoint 10 Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110, 119 (1997) (“The attorney-client 11 privilege covers all forms of communication, including the transmission of specific 12 documents, so a party should not ordinarily formulate a discovery request seeking ‘all 13 documents transmitted to responding party’s attorney.’” (internal citation omitted)). The 14 RFA also asks whether Dr. Alberstone’s report has been “reviewed or analyzed” by 15 Defendant. As Defendant has closed Plaintiff’s claim file and has asserted that it is 16 reevaluating its position on Plaintiff’s claim through litigation, it follows that a claims 17 analyst or other employee of Defendant would only review or not review the report on the 18 advice of outside counsel. Thus, the request implicitly seeks the legal advice given by 19 outside counsel to Defendant’s employees. See Costco Wholesale Corp., 47 Cal. 4th at 20 733 (the attorney-client privilege “attaches to any legal advice given in the course of an 21 attorney-client relationship”). 22 Through this RFA, and the other discovery requests at issue here, Plaintiff is not 23 seeking to discover the unknown contents of documents in the possession of Defendant. 24 Instead, Plaintiff largely knows the contents of the documents he seeks to have identified 25 and then obtain—Plaintiff himself produced those documents in discovery. Instead, 26 Plaintiff is seeking to learn whether or not outside counsel transmitted those documents to 27 Defendant, and what Defendant then did with those documents which, under the factual 28 circumstances of this case, would necessarily reflect the legal advice of outside counsel. 1 Accordingly, the Court denies the motion to compel further response to this RFA. 2 2. RFA No. 3 3 In RFA No. 3, Plaintiff asks Defendant to admit that the Alberstone Report, which 4 was produced in this litigation, has not been added to Defendant’s claim file. (See ECF 5 No. 41-4.) As discussed above, Dr. Alberstone’s report was produced to outside defense 6 counsel in this litigation. Thus, this RFA is seeking information regarding what outside 7 defense counsel did with that report and assumes outside defense counsel provided 8 Dr. Alberstone’s report to Defendant during litigation, which would be a privileged 9 communication in the course of an attorney-client relationship. See Mitchell, 37 Cal. 3d at 10 600. 11 The Court recognizes the significance of the claim file in bad faith insurance 12 litigation,4 but “the reasonableness of the insurer’s decisions and actions must be evaluated 13 as of the time that they were made.” Chateau Chamberay, 90 Cal. App. 4th at 347. The 14 reasonableness “evaluation cannot fairly be made in the light of subsequent events that may 15 provide evidence of the insurer’s errors.” Id.; see also Maynard, 499 F. Supp. 2d at 1160 16 (“[I]n evaluating a genuine dispute, it is essential that no hindsight test be applied.”). 17 Defendant made the decision to deny Plaintiff’s claim prior to the commencement of 18 litigation. As such, documents added to the claim file post-litigation have little to no 19 relevance to the determination of whether there was a “genuine dispute” at the time 20 Defendant denied Plaintiff’s claim. 21 The Court further recognizes that an insurer’s duty of good faith and fair dealing 22 continues post-litigation because the contractual relationship “does not terminate with 23 commencement of litigation.” White v. W. Title Ins. Co., 40 Cal. 3d 870, 885 (1985). 24 25 26 4 See Cal. Code Regs. tit. 10, § 2695.3 (requiring all insurers to maintain claims files); 27 2,022 Ranch, 113 Cal. App. 4th at 1396 (noting the “importance of claims files as evidence in bad faith actions” because they are “a unique, contemporaneously prepared history of 28 1 However, Plaintiff has not established that Defendant cannot meet its ongoing duty through 2 litigation or that there is any legal significance to Defendant physically or electronically 3 adding discovery received through litigation to Plaintiff’s claim file or that an independent 4 claims analyst is the only person who can re-evaluate Plaintiff’s claim in satisfaction of 5 Defendant’s ongoing duty.5 As such, even if this RFA did not seek privileged information, 6 the Court finds that Plaintiff has not established the relevance of the information sought by 7 this RFA. 8 For the foregoing reasons, the Court denies the motion to compel further response 9 to this RFA. 10 3. RFA No. 4 11 In RFA No. 4, Plaintiff asks Defendant to admit that “YOU” evaluated the 12 Alberstone Report, which was produced in this litigation, as part of Defendant’s ongoing 13 duty to evaluate Plaintiff’s claim for benefits at issue in this litigation. (See ECF No. 41- 14 4.) Assuming this request is asking whether an employee of Defendant (and not outside 15 counsel) has evaluated the Alberstone Report, the Court finds the request improper for the 16 reasons discussed above. As Defendant has closed Plaintiff’s claim file and has asserted 17 that it is reevaluating its position on Plaintiff’s claim through litigation, it follows that a 18 claims analyst or other employee of Defendant would only evaluate or not evaluate the 19 report on the advice of outside counsel. Thus, the request implicitly seeks the legal advice 20 given by outside counsel to Defendant’s employees. See Costco Wholesale Corp., 47 Cal. 21 4th at 733. 22 With respect to this RFA (and others), the Court also shares the concerns espoused 23 by the district court in Genesis Ins. Co. v. Magma Design Automation, Inc., No. 5:06-cv- 24 05526-EJD (HRL), 2016 WL 3057375 (N.D. Cal. May 31, 2016). In Genesis, with a 25 pending bad faith insurance claim, the insured sought the insurance company’s claim file 26 27 5 Although the duty to investigate continues post-litigation, case law does not establish 28 1 “for the very claim that [was] currently in litigation between them” to determine whether 2 the insurance company was acting in bad faith during the litigation. Id. at *2–3. In denying 3 a motion to compel post-litigation claims handling information, the court stated that “[a]s 4 a litigant, [the insurance company] is entitled to its day in court, and [the insured] is asking 5 this court to authorize a fishing expedition into the heart of the insurer’s litigation strategy.” 6 Id. at *3. The court added that “the insurer has an absolute right to defend against its 7 insured’s claims, and opening up its litigation file to its insured would undermine its right 8 to a fair day in court.” Id. 9 For the foregoing reasons, the Court denies the motion to compel further response 10 to this RFA. 11 4. Special Interrogatories Nos. 15 and 16 and RFP No. 55 12 In Special Interrogatory No. 15, Plaintiff asks Defendant to identify the date the 13 Alberstone Report was made part of “UNUM’s claim file in this matter.” (ECF No. 41-3.) 14 In Special Interrogatory No. 16, Plaintiff asks Defendant to identify all documents that 15 have been added to Plaintiff’s “UNUM claim file” since February 17, 2022.6 (Id.) In RFP 16 No. 55, Plaintiff asks Defendant to produce all documents that have been added to the 17 “UNUM claim file” since February 17, 2022. (ECF No. 41-2.) 18 As set forth above, the mere act of outside defense counsel transmitting certain 19 documents and information produced in this litigation to Defendant for addition to 20 Plaintiff’s “UNUM claim file” is privileged. See Mitchell, 37 Cal. 3d at 600. Therefore, 21 to the extent these requests seek to determine whether a certain document or piece of 22 23 24 6 On February 17, 2022, Plaintiff requested further appeal based on new MRI scans, 25 dated December 15, 2021, and U.S. Department of Labor documents. (Compl. ¶44.) On February 18, 2022, Defendant advised Plaintiff that it had declined his request for another 26 appeal review of its claim determination. (Id. ¶45.) Thereafter, this action was commenced 27 in California state court on April 25, 2022. (ECF No. 1.). Plaintiff submitted the Alberstone Report to outside defense counsel on August 15, 2022, after the commencement 28 1 information was added to Plaintiff’s claim file during litigation at the direction of outside 2 defense counsel, the Court finds that these requests seek information protected by the 3 attorney-client privilege.7 4 For the foregoing reasons, the Court denies the motion to compel further response 5 to these interrogatories and RFP. 6 5. Special Interrogatory No. 17 and RFP No. 56 7 In Special Interrogatory No. 17, Plaintiff asks Defendant, for each RFA to which 8 Defendant’s response was anything other than an unqualified admission, to state all facts 9 and identify all documents and witnesses, upon which it based its response. (ECF No. 41- 10 3.) In RFP No. 56, Plaintiff asks Defendant, for each RFA to which Defendant’s response 11 was anything other than an unqualified admission, to produce all documents that support 12 its response. (ECF Nos. 41-2; 41-3.) For the reasons stated above with respect to RFAs 13 Nos. 2-4, the Court denies Plaintiff’s motion to compel any further response to this 14 interrogatory and RFP. 15 IV. CONCLUSION 16 For the foregoing reasons, Plaintiff’s motion to compel is GRANTED IN PART 17 and DENIED IN PART. Within fourteen (14) days of the date of this Order, if any 18 documents that have not already been identified and produced by Defendant were added to 19 Plaintiff’s claim file prior to the initiation of Defendant’s attorney-client relationship with 20 outside counsel for purposes of this litigation, Defendant shall supplement its responses to 21 Special Interrogatory No. 16 and RFP No. 55. At the time of production, Defendant shall 22 provide a privilege log pursuant to Rule 26(b)(5)(A) only with respect to any documents 23 24 25 7 With respect to Special Interrogatory No. 16 and RFP No. 55, the Court notes that these requests address the period of time from February 17, 2022, forward. Plaintiff did 26 not file suit until April 25, 2022. To the extent any documents were added to the claim file 27 after February 17, 2022, and prior to the initiation of the attorney-client relationship, those documents must be identified and produced by Defendant, if Defendant has not already 28 1 || or information responsive to Special Interrogatory No. 16 and RFP No. 55, as modified by 2 ||the Court, which have been withheld. Plaintiff's motion to compel is denied in all other 3 || respects. 4 IT IS SO ORDERED. 5 ||Dated: June 23, 2023 .

n. Jill L. Burkhardt 7 ited States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28