It is rare for discovery disputes to find their way to an intermediate appellate court, and rarer yet for such disputes to come before the highest court in a state. A recent decision of the Kentucky Supreme Court that discusses boilerplate objections and privilege logs and, because Kentucky’s rules of civil procedure are similar to Tennessee’s rules, I decided to write about it on this blog written for Tennessee judges and lawyers.
State Farm Mutual Automobile Insurance Company v. Honorable Brian C. Edwards, Judge Jefferson Circuit Court, 2022-SC-0145-MR (KY. June 15, 2023), is a writ of prohibition action seeking to prevent a trial judge from enforcing his discovery orders. I will ignore that part of the decision that addresses the timing of discovery on a bad faith claim – this is not an issue Tennessee lawyers face, and this blog is written primarily for Tennessee judges and lawyers.
The last seven pages of the decision address the attorney-client privilege and work product objections asserted by State Farm in response to written discovery. After describing generally the law of attorney-client privilege and work product, the Court says as follows:
State Farm argues that the requests seek “all documents related to legal claims asserted against State Farm” and “production of the complete claim file materials including related documents and internal memoranda.” While these broad requests may seek some documents that are indeed protected by a privilege, they certainly also seek documents that are not protected. It is incumbent upon State Farm to specifically identify the documents that it claims are protected so that the trial court, and this Court on a writ review, can determine if they are in fact protected. State Farm has failed to do so.
Id. at 14.
State Farm provided a privilege log setting forth hundreds of pages of documents, but the “descriptions [of the documents] are too vague to allow for a determination of whether the documents contained protected materials.” Id.
The Court shared this example:
a portion of the claim file totaling over one hundred pages was described as: “Auto Claim File Print – File Notes, System Generated, Tasks, File Changes, Financial Changes, Performer Changers & Segment Tier Changes from 06/05/18 to 09/16/20 re: liability assessment, insureds property damage claims, evaluation of Attorney claims and response to lawsuit. Partial Redactions.” State Farm alleged that those documents are protected by the work-product doctrine, the attorney-client privilege, and confidentiality. However, no other details are given. This is insufficient to establish the existence of the privilege. …
The limited information in State Farm’s privilege log does not “provide the court with sufficient information to show the existence of the elements of the privilege and to allow review of that decision by higher courts.” Id. at 164–65. “Without more certainty about the content of those documents, a reviewing court cannot determine whether any statements are even in the documents or whether any statements are covered by the privilege.” Id. at 164. Thus, State Farm did not meet its burden to establish its entitlement to the privilege. As
such, the Court of Appeals did not err in denying State Farm’s writ petition regarding the requests for production of documents.
Id. at 14-15 (citations omitted).
The Court then addressed State Farm’s answers to a particular interrogatory:
Interrogatory No. 30 presents a slightly different situation, as it calls for State Farm to provide information as opposed to documents and arguably explicitly requests information covered by the attorney-client privilege. Interrogatory No. 30 asks, “Do you claim to have relied upon the advice of counsel in evaluating the Plaintiff’s claims? If your answer is affirmative, please identify counsel and describe with specificity the advice of counsel which State Farm says it heard or relied upon.” State Farm responded to this interrogatory
by stating,“State Farm objects to this Interrogatory on the grounds that it is irrelevant to whether the oral settlement agreement is enforceable, not reasonably calculated to lead to the discovery of admissible evidence, and requests information protected by the attorney-client and work product privileges. Further, it is undisputed that oral settlement agreements are enforceable under Kentucky law.”
To best analyze this interrogatory, we break it down into parts. First, the question “Do you claim to have relied upon the advice of counsel in evaluating the Plaintiff’s claims?” does not seek the content of communication that is protected by the attorney-client privilege or information that is protected by the work-product doctrine. The next part of the interrogatory asks State Farm to identify counsel if its answer to the previous question was affirmative. Again, this does not seek the content of communication that is protected by the attorney-client privilege or information that is protected by the work-product doctrine. Finally, the interrogatory asks State Farm to “describe with specificity the advice of counsel which State Farm says it heard or relied upon.” Upon its face, the aforementioned arguably could require that State Farm divulge information protected by the attorney-client privilege. However, because State Farm did not respond to the initial question at all, never mind responding in the affirmative, we have no way to know whether the interrogatory would actually require a violation of the privilege. Thus, we cannot hold that the trial court erred in ordering State Farm to answer Interrogatory No. 30. Accordingly, we also cannot hold that the Court of Appeals erred in declining to grant State Farm’s petition for a writ of prohibition. If State Farm eventually answers the first part of Interrogatory No. 30 in the affirmative, it can again assert a privilege, and the trial court will then be required to determine if the privilege applies, given the unique circumstances of the claims at issue in this case.
Id. at 15-16.
Finally, the Court added this about in camera review of documents to address disputes about the applicability of a privilege or work product objection:
Although we do not discount the value of the in camera review method of establishing a privilege, we urge parties to be cognizant of the trial court’s limited time and resources and to be discerning regarding the documents it may request the trial court review in camera. The in camera review method should not be utilized as a way to thrust the burden of determining privilege onto the trial court. Litigants should attempt in good faith to separate out materials that are not privileged and only ask the trial court to review those materials that it truly believes are protected by a privilege.
Id. at 17.
While not controlling authority in Tennessee, this opinion is helpful to those of us who must draft discovery responses and challenge objections made to discovery.