GREENBANK v. GREAT AMERICAN ASSURANCE COMPANY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

JULIE GREENBANK, )

)

Plaintiff, )

)

v. ) No. 3:18-cv-00239-SEB-MPB

)

GREAT AMERICAN ASSURANCE )

COMPANY, )

)

Defendant. )

ORDER ON PLAINTIFF’S MOTIONS TO COMPEL AND DEFENDANT’S MOTION

FOR ORAL ARGUMENT

This matter is before the Court on Plaintiff’s Julie Greenbank, Motion to Compel (Docket

No. 48) and Supplemental Motion to Compel (Docket No. 53). These motions are fully briefed

with a combined response (Docket No. 57) and a reply (Docket No. 62). Defendant, Great

American Assurance Company (“Great American”) has also requested Oral Argument as to

Plaintiff’s motions. (Docket No. 58). As explained below, the Court GRANTS in part and

DENIES in part Julie Greenbank’s Motion and Supplemental Motion to Compel (Docket No.

48; Docket No. 53). Great American’s request for Oral Argument (Docket No. 58) is DENIED

as moot.

I. OVERVIEW

This matter involves a dispute between Ms. Greenbank, a horse owner, and the insurance

company that provided the horse’s equine mortality policy, which included a major medical

provision. On December 20, 2018, Julie Greenbank filed her Amended Complaint alleging that

Great American, the insurer for Ms. Greenbank’s horse, Thomas, breached its contract with Ms.

Greenbank and was liable for bad faith, theft, conversion, criminal mischief, fraud, and

negligence. (See generally Docket No. 10). Ms. Greenbank’s legal claims against Great

American are grounded in allegations that Great American improperly took possession and

control of Thomas, rather than authorizing euthanization, so that Great American could avoid

having to pay out benefits for a mortality loss under the parties’ insurance policy. (Id.). Ms.

Greenbank argues that Great American has subjected Thomas to inhumane, controversial, and

excessive medical procedures to keep him alive and avoid paying out the policy. (Id.).

Great American held an $500,000 equine mortality policy, which included major medical

and guaranteed renewal endorsements, on Thomas. (Docket No. 10, ¶ 11). It asserts that it took

possession of Thomas pursuant to a policy provision that permitted it to assume control over

Thomas’s medical treatment at its expense. (See generally Docket No. 11; Docket No. 15-1 at

ECF pp. 3–4). Great American retained Hagyard Equine Medical Institute (“Hagyard”) to

provide Thomas’s ongoing medical treatment, which is where he remains today. (Docket No. 48-

1 at ECF p. 34). Great American subsequently terminated the insurance policy for a multitude of

reasons. (See generally Docket No. 11; Docket No. 15-1 at ECF pp. 3–4). Great American claims

that since it took possession and control of Thomas’s care, Thomas has made a significant

recovery. (Id.). Of relevance, in its Answer, Great American asserts Affirmative Defense No. 27,

which provides that “[a]t all times, Defendant has acted appropriately and in good faith and in

compliance with applicable provisions of law.” (Docket No. 11 at ECF p. 13).

At the time of the instant dispute, Ms. Greenbank had served six sets of discovery,

constituting over 100 individual requests for documents. (Docket No. 57-2). These included Ms.

Greenbank’s Requests for Production (“RFP) seeking, in part, documents relating to the

possession, control, and treatment of Thomas, the policies, claims and investigation under the

policies, including internal communications, from June 2018 to present. (Docket No. 48-4;

Docket No. 48-5; Docket No. 48-6). In response, Great American has served over 5,000 pages of

documents, including pre and post-suit text communications of Great American personnel, Great

American’s pre-suit claim notes, post-suit photographs, and videos of Thomas. (Docket No. 57-

3; Docket No. 57-4; Docket No. 57-5; Docket No. 57-6).

On May 7, 2019, Great American produced a 79-page Privilege Log withholding or

redacting nearly 800 documents based on confidentiality, relevance, and attorney-client/work-

product privileges. (Docket No. 48-7). Ms. Greenbank took issue with several documents in the

original privilege log and demanded to review almost the entirety of the alleged attorney-client

and work-product privileged documents enclosed therein. (Docket No. 57-9 at ECF p. 1). On

June 27, 2019, Great American provided a Supplemental Privilege Log with additional

explanations for the items that Ms. Greenbank wished to review. (Docket No. 57 at ECF p. 7).1

The Supplemental Log specifies responsive documents withheld or redacted under privileges for

(i) attorney-client, (ii) work product, (iii) relevance and, (iv) confidentiality. (Docket No. 57-8).

Ms. Greenbank argues that it was evident during Great American’s senior claims adjuster

(Bloxsom), senior underwriter (Barcus), and claims supervisor’s (Moore) depositions that none

had seen the Privilege Log prior to the deposition, had been asked to review any document for

privilege, had knowledge as to why their documents have been withheld or redacted. (Docket

No. 48-1 at ECF pp. 35–36; Docket No. 48-2 at ECF p. 21; Docket No. 48-3 at ECF p. 24). Ms.

Greenbank takes issue with this testimony because the majority of documents on the

1 In Great American’s counsel’s letter that accompanied the Supplemental Privilege Log, he

explained that the longer original Privilege Log had repeated descriptions because the

attachments to emails had been listed separately from the emails to which they were attached.

(Docket No. 57-9 at ECF pp. 1–2). Counsel also explained that, with few exceptions, the

attachments themselves had been produced and only the underlying communications and

“obviously privileged documents” were withheld. (Docket No. 57 at ECF p. 8, citing Docket No.

57-9 at ECF p. 2).

Supplemental Log were sent or received by these individuals. Moreover, Ms. Greenbank argues,

these deponents also refused to answer questions regarding factual matters occurring after the

filing of the Complaint and regarding Great American’s reliance on the advice of counsel for its

good faith defense.

Thus, Ms. Greenbank seeks an order compelling Defendant to produce documents and

answer deposition questions. Specifically, Ms. Greenbank seeks an Order that Defendant: (1)

produce all documents identified in the Supplemental Privilege Log in their narrative form2,

without redaction; (2) produce all internal documents and communications, which originated

after the filing of the Complaint and are responsive to Plaintiff’s Requests for Production in their

native form, without redaction, including the Claim Note File and the Underwriting File; (3)

produce Charlotte Bloxsom, Meriwether Moore, and Marlena Barcus for a second deposition in

Evansville, Indiana; and (4) be sanctioned in the amount of Ms. Greenbank’s attorneys’ fees and

costs incurred relating to the Motion to Compel and the taking of the second depositions of

Bloxsom, Moore, and Marcus. (Docket No. 49).

The parties were unable to resolve the dispute informally. The Court has held at least

seven telephonic discovery conferences in this litigation (see, e.g., Docket No. 34, Docket No.

40, Docket No. 43, Docket No. 46, Docket No. 70, Docket No. 72, and Docket No. 75), both on

matters addressed in this briefing and a host of other issues. The issues in this motion remain

contested for the Court’s review.

2 The Supplemental Privilege Log references 125 documents that total more than 400 pages.

(Docket No. 57-8). It also references the original 79-page privilege log, but it is unclear if this

reference means that Ms. Greenbank’s prayer for relief encapsulates the 79-page privilege log as

well.

I. ANALYSIS

a. Standard

If parties cannot informally resolve a discovery dispute, Federal Rule of Civil Procedure

37 provides a vehicle for the aggrieved party to request an order from the court compelling

discovery. See Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002); see also

S.D. Ind. Local Rule 37-1. District courts have broad discretion in matters relating to discovery.

See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (citing Packman v.

Chicago Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001)).

Federal Rule of Civil Procedure 26(b)(1) sets the standard for the scope of general

discovery, providing that:

Scope in General. Unless otherwise limited by court order, the scope

of discovery is as follows: Parties may obtain discovery regarding

any nonprivileged matter that is relevant to any party’s claim or

defense and proportional to the needs of the case, considering the

importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the

parties’ resources, the importance of the discovery in resolving the

issues, and whether the burden or expense of the proposed discovery

outweighs its likely benefit. Information within this scope of

discovery need not be admissible in evidence to be discoverable.

A party moving to compel production carries the initial burden of establishing, with

specificity, that the requested documents are relevant. West v. Miller, 2006 WL 2349988, at *2

(N.D. Ill. Aug. 11, 2006) (citing United States v. Farley, 11 F.3d 1385, 1390 (7th Cir. 1993)). If

that burden is met, the burden then shifts to the non-movant to show the impropriety of the

request. Id. at *7.

Great American does not contest the relevancy of the majority of the documents in the

Supplemental Privilege Log, thus unless otherwise noted the Court will turn to consider whether

Great American has met its burden to show the impropriety of Ms. Greenbank’s requests and, if

so, if Ms. Greenbank can overcome that burden.3

a. Supplemental Privilege Log #1—Claim Notes

Most of Ms. Greenbank’s briefing is scattershot and references large ranges of Great

American’s Supplemental Privilege Log for each argument, but she has a few particular

arguments that she makes as to only the Claim File (Docket No. 48-9 at ECF p. 1, Supplemental

Privilege Log #1). The Court agrees with one of those arguments. (Docket No. 50 at ECF p. 18).

When describing the Claim Note File in the Supplemental Log, Great American lumps multiple

claim notes in one row, omits the identity of the “sender,” i.e., the person creating the note, and

instead identifies the persons as “Various;” omits the identity of the “Receiver” and generally

cites “Great American employees and outside counsel for Great American;” does not include

dates of the redact notes; and fails to reasonably describe the subject matter as the “Description”

section provides no specificity. (Docket No. 48-9 at ECF p. 1). For example, the Court cannot

discern if all the redacted Claim notes were pre-suit or if some were post-suit. Moreover, it

appears that there is a typo as the description indicates that the “Redacted claim notes were

created in the ordinary course of business, but instead created with the primary motivating

purpose to aid in litigation.” (Id.).

A privilege log must be made on a document-by document basis and include:

(1) The name and job title or capacity of the author(s)/originator(s);

3 Ms. Greenbank states that “Defendant has refused to produce any internal document responsive

to the RFPs originating after the filing of the Complaint based, in part, on relevance. (Docket No.

50 at ECF p. 10). This broad assertion is clearly false. (Docket No. 57 at ECF p. 3) (citing

records and indicating “In response [to Ms. Greenbank’s written discovery] Great American has

served 5,000 pages of documents, including pre-suit and post-suit text communications of Great

American personnel, Great American’s pre-suit claim notes, post-suit updates on Thomas’

condition, and post-suit photographs and videos of Thomas.”).

(2) The names of all person(s) who received the document or a copy of

it and their affiliation (if any) with the producing party;

(3) A general description of the document by type (e.g., letter,

memorandum, report);

(4) The date of the document; and

(5) A general description of the subject matter of the document.

In re. Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Prods. Liab. Litig., 129 F.

Supp. 2d 1207, 1218–19 (S.D. Ind. 2001).

Great American has produced a large portion of the Claim File, but has redacted twenty

pages (GAAC 1688-1708) based on a single entry on its privilege log. Moreover, that single

entry provides insufficient information for the Court to assess the privilege claims and the merit

of Ms. Greenbank’s arguments against those privilege claims. Thus, the Court ORDERS Great

American to provide an Amended Supplemental Privilege Log by December 11, 2019, that

provides further detail as to its privilege assertions for GAAC 1688-1708. If necessary, given

the various senders and, assumedly, various dates, Great American’s amended log must include

multiple rows for the claim notes so that the necessary information described above can be

included in a way that permits Ms. Greenbank and this Court to conduct a meaningful review.

If—in light of the guidance provided in this entry and the additional information in the amended,

supplemental log—Ms. Greenbank still believes that any privileges are improperly invoked, then

the parties must meet and confer regarding Ms. Greenbank’s specific objections. If that meet

and confer does not resolve the issue, then each party may select up to three claim notes for

Great American to produce by December 18, 2019, for an in camera review. If the Court

finds that any of these six documents is not privileged, Great American shall produce all

documents from GAAC 1688-1708 unredacted.

Given the insufficiency of the Claim Notes privilege log entry, it is difficult for the Court

to address Ms. Greenbank’s argument that the entire Claim File was created in the ordinary

course of business and thus, neither the attorney-client privilege nor the work-product doctrine

apply. However, the parties should keep in mind some general principles upon their further

review of this issue. “Determining what is ‘prepared in anticipation of litigation’ has both a

temporal and causation element . . . [W]ork product is defined as those materials produced

because of the anticipation of litigation.” B.F.G. of Illinois, Inc. v. Ameritech Corp., 2001 WL

1414468, *3 (N.D. Ill. 2001). It is not persuasive to argue, generically, that an entire claim file is

maintained in the ordinary course of business as this overlooks that claim files are maintained

over time and as it becomes evident that some prospect of litigation or some articulable claim is

likely to lead to litigation entries within the claim file are no longer made in the ordinary course

of business. Moreover, Great American has stated—and the evidence submitted with this

briefing confirms—that it has already provided large portions of the Claim File to Ms.

Greenbank. Thus, if Great American adequately asserts privileges as to the claim notes in the

amended log, then Ms. Greenbank must describe, with specificity, why specific portions of the

Claim File were maintained in the ordinary course of business.

b. Waiver of Privileges

Because Ms. Greenbank’s key argument is based on a waiver of all privileges in the

Supplemental Privilege Log, the Court addresses it first. Ms. Greenbank argues that, even if

work-product doctrine and attorney-client privileges apply, Great American has waived them

because counsel prepared the supplemental log without consulting Great American as to whether

the underlying factual basis for the documents supported a privilege designation. (Docket No. 50

at ECF pp. 14–15; Docket No. 62 at ECF p. 2–6). Ms. Greenbank argues that Great American

cannot claim protection as it did not designate evidence that any of the redacted or withheld

documents were created in anticipation of litigation or were communications involving counsel

for the purpose of obtaining legal advice and assistance. (Id.). Ms. Greenbank’s argument relies

on four cases: Logan v. Commercial Union Ins. Co., 96 F.3d 971 (7th Cir. 1996), Summerville v.

Moran, No. 1:14-cv-02099-WTL-TAB, 2016 WL 233627 (S.D. Ind. Jan. 20, 2016), Telamon

Corp. v. Charter Oak Fire Ins. Co., No. 1:13-cv-00382-RLY-DML, 2014 WL 202097 (S.D. Ind.

Jan. 17, 2014), and Clifford v. Crop Prod. Servs., Inc., 627 F.3d 268, 273 n. 6 (7th Cir. 2010).

However, none of these cases support Ms. Greenbank’s position. Rather, in Logan, 96

F.3d at 966–67, the court held that the documents written after Plaintiff’s worker’s compensation

claim was denied and he had filed suit were appropriately withheld on the basis of the work-

product doctrine. The court acknowledged the standard that courts look to is a factual context to

determine if “the document can fairly be said to have been prepared or obtained because of the

prospect of litigation.” Id. (citations omitted). This does not mean that the parties themselves

must make the determination.

In Summerville, 2016 WL 233627, at *5–6, the Court held that seventeen of the

documents were not privileged because “entries in the privilege log do not describe the

documents as relating to legal advice, communications or conversations between attorney and

client, or discussions of ongoing legal concerns.” Moreover, the Court went on to hold that

“imposing a waiver because [the propounding party’s] objections and privilege log are

inadequate is severe, absent bad faith, willfulness, or fault.” Id. at *5.4 Indeed, the Court refused

to order production of the attorney-client privileged documents, but instead provided an

alternative form of relief better tailored to the facts of that case. Id.

4 On this note, even if the Court were persuaded that Great American’s Privilege Log was

inadequate, nowhere does Ms. Greenbank address why the Court should immediately result to

such a severe sanction.

In Telamon Corp. v. Charter Oak Fire Ins. Co., 2014 WL 202097, at *1, the Court

considered whether non-party investigators hired by a company to investigate a potential

criminal theft for the purposes of reporting to law enforcement had to turn over certain

documents in their file during litigation with a third-party insurer. The Court held that the non-

party investigator’s documents were not work product because there was no fear of litigation or

fear of a claim being made at the time the documents were created. See id. at *3. The Court also

held that the attorney-client privilege did not apply because some of the communications were

obviously not made to obtain legal advice and because it was obvious that the investigation

occurred because Telamon had “a pressing business reason to uncover what it believed was a

large-scale inventory fraud by one of its workers.” Id. at *4. Again, nowhere did the court waive

a privilege or state that these privileges could only be determined by the parties themselves.

Finally, Plaintiff relies on a footnote in Clifford v. Crop Prod. Servs., Inc., for the

proposition that “argument of counsel is not evidence,” yet Clifford does not involve privilege

assertions or privilege logs for that matter, but instead reminds counsel at oral argument that his

arguments are not evidence that a fact exists. Clifford, 627 F.3d at 273 n. 6. None of these cases

support Ms. Greenbank’s position that counsel is unable to independently consider a document

within its factual context to determine if a privilege applies. This authority does not require

sworn testimony or other evidence to be submitted in support of a privilege log. See Heartland

Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 WL 3574737,

at *5 (S.D. Ind. July 25, 2018) (rejecting similar argument that a party is “required to support

their privilege assertions with affidavits affirming the statements in the privilege log and that the

contents of the withheld communications are privileged.”).

c. Attorney-Client Privilege

Federal courts presiding over a diversity action look to state law in determining the

existence and scope of the attorney-client privilege. Urban Outfitters, Inc. v. DPIC Co., Inc., 203

F.R.D. 376, 378 (N.D. Ill. 2001), citing Fed. R. Evid. 501. The attorney-client privilege is “one

of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United

States, 524 U.S. 399, 403 (1998). It protects against judicially compelled disclosure of

confidential information. Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000), citing

Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990). Indiana’s attorney-client privilege is

found in Indiana Code § 34–46–3–1, which provides in pertinent part:

Except as otherwise provided by statute, the following persons shall

not be required to testify regarding the following communications:

(1) Attorneys, as to confidential communications made to them in

the course of their professional business, and as to advice given in

such cases.

In re Commitment of J.B., 766 N.E.2d 795, 797 (Ind. Ct. App. 2002), citing I.C. § 34–46–3–1.

The burden of proof as to the applicability of the privilege is on the party who asserts it. Owens

v. Best Beers of Bloomington, Inc., 648 N.E.2d 699, 702 (Ind. Ct. App. 1995).

The privilege allows both the attorney and the client to give complete and confidential

information in candor so that both may be fully advised regarding the attorney’s services to the

client. Lahr, 731 N.E.2d at 482. Yet, the privilege “is not an absolute, eternal shield; a client who

does not safeguard the confidentiality of communications that would otherwise be protected

waives the privilege and subjects the communications to compelled disclosure.” R.J. Reynolds

Tobacco Co. v. Premium Tobacco Stores, Inc., 2001 WL 1571447, at *2 (N.D. Ill. 2001), citing

United States v. White, 950 F.2d 426, 430 (7th Cir. 1991).

Using the attorney-client privilege, Great American seeks to shield some of its internal

communications (i.e., emails, claim notes, and text messages) amongst Great American

employees as well as emails between Great American employees and its counsel in this matter.

(see generally Docket No. 48-9). Ms. Greenbank argues the privilege does not apply to internal

employee documents (Docket No. 50 at ECF p. 27), that communications between Great

American and its counsel are not covered by the privilege because of its “good faith” defense

(Docket No. 50 at ECF pp. 27–34), and the privilege does not shield relevant, factual

information. (Docket No. 50 at ECF p. 30).

The Court finds that—with the exception of the Claim File, which the Court has

inadequate information to discern, and Supplemental Privilege Log # 119 and 122, discussed

herein—Great American has met its initial burden of adequately alleging the attorney-client

privilege. Each entry includes the essential privilege log contents, outlined above, and falls

within the confines of Indiana’s attorney-client privilege definition.

First, Ms. Greenbank takes issue with Supplemental Privilege Log #4, 19-21, 26-27, 32-

33, 42-43, 45-49, 68-73, 77, 79, 83, 90-91, 94-96, 98-108, 111-117, and 1255 because she argues

that attorney-client privilege does not extend to internal documents and communications between

employees withheld based on the attorney-client privilege. (Docket No. 50 at ECF p. 27). She

cites Odongo v. City of Indianapolis, 1:14-cv-00710-TWP-MJD, 2015 WL 420110 (S.D. Ind.

Jan. 30, 2015) for the proposition. However, in Odongo the plaintiff sought field notebooks from

police officers and the court held that the police officers were non-attorneys and the notebooks

5 Great American’s Supplemental Privilege Log (Docket No. 48-8; Docket No. 57-8) was not

numbered, but Ms. Greenbank provided a numbered version to the Court (Docket No. 48-9),

which the Court references to align the Court’s discussion with the issues Ms. Greenbank has

raised.

were used in the regular course of recordkeeping protocol, thus the notebooks were not

privileged. Odongo is not factually analogous to this case nor does it stand for the general

proposition that internal communications cannot be protected under the attorney-client privilege.

More analogous case law directly contradicts Ms. Greenbank’s argument. See Long v.

Anderson Univ., 204 F.R.D. 129, 134 (S.D. Ind. 2001) (collecting cases). “Individuals in an

organizational structure are permitted to ‘consult with one another’ about an attorney’s legal

advice ‘so that all relevant information is known before making a legal decision’ without

waiving the privilege.” Carr v. Fed. Bureau of Prisons (BOP), No. 2:14-cv-00001-WTL-MJD,

2017 WL 2957972, at *3 (S.D. Ind. July 10, 2017) (citing Roth v. Aon, 254 F.R.D. 538, 541

(N.D. Ill. 2009)). A general review of these privilege log entries, given Ms. Greenbank has

provided so specific objections to any one entry, shows that these internal communications were

either forwarded communications from counsel or were conversations amongst Great American

employees, i.e., within an organizational structure, discussing counsel’s legal advice in order to

make legal decisions. Thus, Ms. Greenbank’s argument is not persuasive.

Next, Ms. Greenbank takes issue with Supplemental Privilege Log #2-3, 5-7, 10-18, 22-

25, 28-41, 44, 50-67, 74-76, 78, 80-82, 84-89, 92-93, 109-110 because she argues that

communications between Great American’s employees and counsel relating to Thomas, the

policies, and the investigation of the claims are not protected. (Docket No. 50 at ECF pp. 27–34).

Specifically, Ms. Greenbank argues that Great American cannot rely on advice of counsel to

support its “good faith” affirmative defense and then withhold relevant documents and that the

attorney-client privilege does not shield relevant factual information. The issue with this

argument there is no evidence that Great American relied on the advice of counsel to support its

“good faith” affirmative defense. The basic issue as to whether a bad faith claim permits the

plaintiff to obtain access to otherwise protected documents was addressed in Hartford Financial

Servs. Grp., Inc. v. Lake Cty. Park and Recreation Bd., 717 N.E.2d 1232, 1235 (Ind. Ct. App.

1999). In Hartford, plaintiff-municipal entity, who operated a water park, filed suit against its

insurance company, Hartford, claiming Hartford acted in bad faith in investigating an insurance

claim for property damage to a pool. Hartford originally determined that the loss was covered but

retreated from its position when plaintiff proposed a cost of $1.5 million for replacement of the

pool. The trial court compelled discovery, ordering production of:

all of [Hartford’s] claims files relating to the claim which is not the

subject of this cause of action, including but not limited to, the

claims files of the home office, regional office, local claims office,

private investigator’s file, and independent insurance adjustor’s

files, including the file jacket, which were generated before the

complaint was filed.

Id. at 1234. The documents included “correspondence between Hartford and its outside counsel

as well as internal communications regarding the advice or opinions of counsel with respect to

the loss.” Id. On interlocutory appeal, the Indiana Court of Appeals reversed and observed:

The role of Hartford’s counsel was not one of mere negotiator; nor

was the attorney retained to act in the capacity of an agent other than

an attorney such as a type of “outside claims adjuster” or to give

simple business advice. Simply put, Hartford retained counsel to

investigate Lake County’s claim, render legal advice and make a

coverage determination under the policy. Here, Hartford is not

seeking to defend [plaintiff] against a third party. Rather, the

underlying claim here, which remains unresolved, is whether

[plaintiff] is covered under its policy with Hartford for the damage

it allegedly sustained. The communication between Hartford and its

attorney was not on behalf of [plaintiff], but was rather on behalf of

Hartford . . . To permit [plaintiff] access to the documents simply

because it asserted a bad faith claim against Hartford would ignore

the basic premise of protecting the attorney-client privilege.

Id. at 1236–38. Thus, the fact that Great American denies it acted in bad faith does not invoke

the so-called “put-in-issue” exception. See, e.g., Chamberlain Group v. Interlogix, Inc., 2002

WL 467153, at *3 (N.D. Ill. Mar. 27, 2002), quoting Harter v. Univ. of Indianapolis, 5 F. Supp.

2d 657, 665 (S.D. Ind. 1998) (Hamilton, J.) (“when a client files a lawsuit in which his or her

state of mind . . . may be relevant, the client does not implicitly waive the attorney-client

privilege . . . unless the client relies specifically on advice of counsel to support a claim or

defense.”).

Citing Harter, Ms. Greenbank argues that Great American has “clearly” put its state of

mind at issue thru its “good faith” affirmative defense and, thus, she is permitted to discover

whether Great American seeks to rely on the advice of counsel to support its actions and defense.

(Docket No. 50 at ECF pp. 30–31). This is not a fair reading of Harter. In Harter, the relevant

question at issue is whether the plaintiff’s attorney was considered a “necessary witness,” thus

potentially precluding the attorney from representing plaintiff under the Indiana Rules of

Professional Conduct. Harter, 5 F. Supp. 2d at 665. At the heart of that analysis was whether the

plaintiff waived the attorney-client privilege as to communications on the subject to which the

attorney was an alleged “necessary witness.” Id. at 663. The Court noted that a client may

implicitly waive the attorney-client privilege by putting “in issue” an attorney’s advice. Id. at

664. Most notable to the instant case, the Court noted that “[t]he issue in this case is whether

[plaintiff] has done anything to put his communications with his attorney in issue.” Id. The Court

then observed:

The better-reasoned cases hold, however, that when a client files a

lawsuit in which his or her state of mind (such as good faith or

intent) may be relevant, the client does not implicitly waive the

attorney-client privilege as to all relevant communications unless

the client relies specifically on advice of counsel to support a claim

or defense.

Id. (collecting cases). The Court concluded that while the plaintiff’s “state of mind may be

relevant here, the possibility that privileged communications could provide the opponent with

relevant evidence is not a sufficient basis for finding a waiver of the privilege.” Id. at 665. Thus,

Harter directly contradicts Ms. Greenbank’s argument. Great American has not specifically

relied on advice of counsel to support its good faith defense. Ms. Greenbank cites other authority

for this proposition, which is also unpersuasive, but that authority discussed the issue from a

work-product doctrine point of view and, thus, will be discussed in the next section.

Next, Plaintiff argues that the “description” in the Supplemental Log is insufficient

because it provides no specificity to assess the privileges asserted. (Docket No. 50 at ECF p. 28).

To assert the attorney-client privilege, a privilege log should “describe the nature of the

documents, communications, or tangible things not produced or disclosed . . . in a manner that,

without revealing information itself privileged or protected, will enable other parties to assess the

claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii).

Ms. Greenbank cites Ott v. City of Milwaukee, 2010 WL 5095305, at *7 (E.D. Wis. Dec.

8, 2010), for the proposition that Great American’s Supplemental Privilege Log is insufficient.

(Docket No. 50 at ECF p. 28, citing Ott to note for the proposition that “defendants failed to

provide details about the documents being withheld.”). Once again, Ms. Greenbank

misrepresents the case’s applicability to this matter. In Ott the defendants withheld certain

documents on the basis of privilege, but the defendants never provided a privilege log to

plaintiff. See id. at *6. This case is more akin to Heartland Consumer Prod. LLC v. DineEquity,

Inc., No. 1:17-cv-01035-SEB-TAB, 2018 WL 3574737, at *3 (S.D. Ind. July 25, 2018) where

this Court found that privilege log entries substantially similar to Great American’s entries in this

case were sufficient. See id. at *7. Take, for instance, the “Description” that Ms. Greenbank cites

in her opening brief as evidence of an insufficient privilege log:

Confidential communications between legal counsel and Great

American employees made in the context of an attorney-client

relationship and in connection with the provision of legal services

regarding communications with Plaintiff and including attachments

and discussion of communications with Plaintiff.

(Docket No. 48-9, Supplemental Privilege Log # 58-61, 84). Like Heartland Consumer Products

LLC, “[t]he most reasonable reading of these descriptions is that they pertain to emails seeking

and giving advice regarding the legal impacts of the listed topics.” Id. at *7.

The final argument Ms. Greenbank sets forth in regard to attorney-client privilege is that

it does not shield relevant, factual information. (Docket No. 50 at ECF p. 30). She argues that the

possession, control, and treatment of Thomas after the filing of the Complaint, and Great

American’s actions and decisions related to the same, all relate to facts concerning the claims

and defenses. (Id.). Contrary to her earlier-addressed arguments, Ms. Greenbank now asserts that

she does not seek post-Complaint communications with counsel relating to litigation strategy or

the preparation of litigation filings. (Id.). The issue with this argument, raised in two conclusory

paragraphs, is that Ms. Greenbank fails to cite to any specific Supplemental Privilege Log entry

or any other specific discovery response in which she finds Great American has failed to provide

relevant, factual information due to its reliance on the attorney-client privilege. Great American

has provided post-suit updated on Thomas’s condition (Docket No. 57-6) and videos of Thomas.

(Docket No. 57-7).

In sum, unless specifically noted otherwise in this entry Ms. Greenbank is not entitled to

any documents that Great American has withheld on the basis of attorney-client privilege.

d. Work-Product Doctrine

The work-product doctrine, announced in Hickman v. Taylor, 329 U.S. 495 (1947),

protects otherwise discoverable documents and was codified as Rule 26(b)(3)(A) of the Federal

Rules of Civil Procedure and provides:

[A] party may not discover documents and tangible things that are

prepared in anticipation of litigation or for trial by or for another

party or its representative (including the other party’s attorney,

consultant, surety, indemnitor, insurer, or agent). But, subject to

Rule 26(b)(4), those materials may be discovered if: (i) they are

otherwise discoverable under Rule 26(b)(1); and (ii) the party shows

that it has substantial need for the materials to prepare its case and

cannot, without undue hardship, obtain their substantial equivalent

by other means.. . . If the court orders discovery of those materials,

it must protect against disclosure of the mental impressions,

conclusions, opinions, or legal theories of a party’s attorney or other

representative concerning the litigation.

To come within the qualified protection from discovery created by Rule 26(b)(3), a party

claiming protection must show that the materials sought are: (1) documents and tangible things;

(2) prepared in anticipation of litigation or for trial; and (3) by or for a party or by or for a party’s

representative. Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 613–14 (N.D.

Ill. 2000).

If the work-product privilege is established, it can be overcome if the party seeking the

materials, here Ms. Greenbank, shows: (1) a substantial need for the materials, and (2) an

inability to obtain the substantial equivalent of the information without undue hardship. Id. at

614. Even upon such a showing, however “the lawyer’s mental processes are required to be

protected from disclosure.” Id. The mental impressions of a corporate representative are also

protected from disclosure, even if there is a substantial need. See In re Payment Card

Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720 (MKB), 2018 WL 1162552,

at *11 (E.D.N.Y Feb. 26, 2018) (providing that typically heightened protection is provided to

attorney-work product but that employees can constitute “other representatives” referred to in

Rule 26(b)(3) if the document contains mental impressions and opinions); see also Fed. R. Civ.

P. 26(b)(3) (The Court “must protect against disclosure of the mental impressions, conclusions,

opinions, or legal theories of a party’s attorney or other representative concerning the

litigation.”).

Like the attorney-client privilege, the Court finds that—with the exception of the Claim

File, which the Court cannot discern at this juncture, and Supplemental Privilege Log #s 119 and

122, discussed herein- Great American has met its initial burden of adequately alleging the work-

product doctrine. Each entry includes the essential privilege log contents, outlined above, and

provides a sufficient explanation of the doctrine’s applicability to the documents.

First, Ms. Greenbank takes issue with Great American’s work-product privilege assertion

as to documents and factual information possessed by its employees before and after the filing of

the Complaint, specifically citing Supplemental Privilege Log #4, 8-9, 19-21, 26-27, 32-33, 42-

43, 45-49, 68-73, 77, 79, 83, 90-91, 94-108, 111-117, and 125. (Docket No. 26 at ECF p. 26).

She argues that these “internal communications and documents relate to Defendant’s receipt of

factual information, actions, decisions and investigation occurring in the normal course of its

insurance business.” (Docket No. 50 at ECF p. 26). Ms. Greenbank provides no additional

explanation or basis as to why the work-product doctrine does not apply to these specific

privilege log items as Great American adequately asserts and further explains in the

Supplemental Privilege Log. Without more, the Court cannot review this argument. Woodruff v.

Am. Fam. Mut. Ins. Co., 291 F.R.D. 239, 242 (S.D. Ind. Apr. 22, 2013) (finding an argument

waived when counsel failed to specify on a document-by-document basis the basis for the

argument).

Next, Ms. Greenbank argues that even if these documents are privileged, that privilege is

overcome because she need only show the “possibility, not the certainty, that the claim

documents contain evidence of bad faith.” (Docket No. 50 at ECF p. 29, citing Logan v. Comm.

Union Ins. Co., 96 F.3d 971, 977 (7th Cir. 1996)). She argues that the possibility that the

Supplemental Privilege Log documents contain evidence of bad faith is evident from the fact that

(i) Great American did not assess the factual requirements for the privileges with the employees

who originated the documents, (ii) that Great American intentionally over-redacted information

in the Claim Note File which is not-privileged and which is required for a privilege log, (iii)

Great American’s Vice-President sent an email noting that it was cheaper to pay treatment costs

than the $500,000 mortality claim, and (iv) the documents relate to Defendant’s actions and

decision-making as to the possession, control, and treatment of Thomas are based on a “moral”

and “ethical” duty neither contained in the policy nor recognized by insurance law. (Docket No.

50 at ECF p. 29–30).

The analysis of this argument is a continuation of the bad faith issue in the attorney-client

privilege discussion above. Courts have compelled the production of privileged claim file

documents in bad faith actions where the insured showed both a compelling need for the

documents and that the information was not available elsewhere. See, e.g., Transport Ins. Co.,

Inc. v. Post Express Co., Inc., No. 91 C 5750, 1996 WL 32877, at *2 (N.D. Ill. Jan. 25, 1996);

Holmgren v. State Farm Mutual Automobile Ins. Co., 976 F.2d 573 (9th Cir. 1992). Because

often “nearly all potential evidence of bad faith lies in the [insurer’s] communication during the

period of the allegedly wrongful conduct,” Logan, 96 F.3d at 977, and “the claims file is a

‘unique, contemporaneously prepared history’ of how the insurer actually handled the claim,”

courts have found under certain circumstances that the need for “this information is not only

substantial but overwhelming.” Transport, 1996 WL 32877 at *3 (quotation omitted).

However, “a naked claim of bad faith cannot, without more, authorize a fishing

expedition into privileged communications.” Logan, 96 F.3d at 977. A mere allegation of bad

faith is insufficient to overcome privilege. Id. Instead, the insured must “demonstrate some

likelihood or probability that the documents sought may contain evidence of bad faith.” Id. The

“required showing is not a high hurdle because the plaintiff, without seeing the documents, can

only speculate as to their likely contents.” Id. In this regard, the insured “need only show the

possibility, not the certainty, that the claim documents contain evidence of bad faith.” Id.

Ms. Greenbank contends that she has made the requisite showing. She points to the fact

that the Great American employees did not assess the redactions due to privilege, that the Claim

File Note was “intentionally over-redacted” (although she does not expound on this issue), that

Great American’s Vice-President sent an email noting that it was cheaper to pay treatment costs

than the $500,000 mortality claim, and that the documents “relate to Defendant’s actions and

decisionmaking as to the possession, control, and treatment of Thomas[,]” which are “based on a

‘moral’ and ‘ethical’ duty neither contained in the policy nor recognized by insurance law.”

(Docket No. 50 at ECF pp. 29–30). The Court has already addressed and rejected Ms.

Greenbank’s first argument that Great American erred by not having its employees review the

redactions for privilege, Ms. Greenbank does not expound on how the Claim File Note was

“Intentionally over-redacted,” nor how an email noting that it was cheaper to pay treatment costs

than the $500,000 mortality claim creates a possibility that Great American relied on legal advice

in making its claim decisions.

Plaintiff cites Woodruff v. Am. Fam. Mut. Ins. Co., 291 F.R.D. 239 (S.D. Ind. 2013) to

support its argument showing substantial need. (Docket No. 50 at ECF p. 29). The procedural

posture in Woodruff is completely different than this case. Woodruff involved a suit by an insured

(really, its estate) against its insurer for alleged wrongdoings, including breach of the insurer’s

duty of good faith, for the insurer’s handling of an underlying personal injury lawsuit where the

insured was sued and was represented by insurer-provided counsel. Id. at 240. The Court held

that neither the attorney-client privilege nor the work-product doctrine applied because the

insurer sought to prevent the disclosure of documents/communications created in the underlying

lawsuit—where the insured was the very party for whom those documents/communications were

originally created given the insured-retained counsel on behalf of the insurer. Id. at 247. The

Court noted that several of the contested documents had previously been sent to the insured or

were his own statements. Woodruff is inapplicable to this case.

Moreover, Great American did not withhold its entire claims file; it withheld only a

portion of documents within the claim notes and communications during the claims handling

period. Ms. Greenbank has access to the remainder of the claims file, as well as to Great

American’s communications with Ms. Greenbank regarding its reasons for denying the claim,

and the deposition testimony of the Great American employees who handled the claim. These

non-privileged sources provide the information that Ms. Greenbank needs. Ms. Greenbank has

not demonstrated that the mental impressions of counsel and the legal advice provided are

directly at issue in its bad faith claim or that she has a compelling need for such information. “To

permit [Ms. Greenbank] access to the documents simply because [she] asserted a bad faith claim

against [Great American] would ignore the basic premise of protecting the attorney-client

privilege.” Bartlett v. State Farm Mut. Auto. Ins. Co, 206 F.R.D. 623, 627 (S.D. Ind. 2002)

(quoting Hartford Fin. Servs. Group., Inc., 717 N.E.2d at 1235). The Court will not compel

Great American to produce the aforementioned documents on this basis.

e. Unilateral Redactions for Relevance

Ms. Greenbank argues that Great American improperly withheld and redacted emails and

text messages for “relevance,” specifically raising Supplemental Privilege Log # 94, 97, 118-

125. (Docket No. 50 at ECF pp. 15–16; Docket No. 50 at ECF pp. 25–26; Docket No. 48-9).

As noted by Ms. Greenbank, this Court has previously denied a party leave to unilaterally

redact on the basis of relevancy in Bell v. Anthem, 1:15-cv-02062-TWP-MPB, 2016 U.S. Dist.

LEXIS 194739 (S.D. Ind. Nov. 9, 2016). In that case, the producing party sought to redact

information in documents that pertained to other 401(k) plans not at issue in the breach of

fiduciary duty lawsuit, but this Court noted that unilateral redactions are suspicious and deprive

the reader of context. The relevance redactions in this case are distinguishable from those in the

Bell case in several ways. First, that case involved documents where the 401k plans at issue in

the lawsuit were discussed interchangeably with the 401k plans not at issue, making it difficult to

ensure only irrelevant information was unredacted. This also made it more likely that the

relevance redactions would also omit necessary context to the otherwise responsive documents.

Here, many of the redactions for relevance are in text message and e-mail communications

where it is easier (and more likely) that the relevant subjects are completely separated from the

irrelevant subjects, such as which employees were “on call” or upcoming holiday celebrations.

(Docket No. 57-8 at ECF p. 14). These isolated redactions are unnecessary for context. Second,

Great American has provided an adequate explanation as to exactly what was redacted for

relevance, which permits Ms. Greenbank to challenge any of those redactions if she does not

believe that they are irrelevant. Ms. Greenbank has not challenged any specific relevance

objection. Under these circumstances the Court finds the relevancy redactions appropriate.°

f. Communications Between Great American and Hagyard

Next, Ms. Greenbank asserts that Great American has wrongfully withheld

communications between Hagyard veterinarians, Dr. MacGillivray and Dr. Slovis, and Great

American employees. (Docket No. 50 at ECF pp. 23-25). She specifically raises Supplemental

Privilege Log # 119, 122, 123, and 124. (Docket No. 48-9 at ECF pp. 11—12). Supplemental Log

# 123 and 124 address communications between Bloxsom (Great American employee) and Dr.

Slovis (Hagyard Veterinarian) that are redacted for “Confidential Information Irrelevant to

Plaintiff's Suit” as they are “Irrelevant communications regarding unrelated horse.” (Docket No.

48-9 at ECF pp. 11-12). Given Hagyard is a large equine veterinarian facility and Great

American is an equine insurance group, it is logical that these two entities regularly converse on

several horses’ medical conditions at any given time. This information is irrelevant to Ms.

Greenbank’s claim and, for the same relevancy reasoning as above, these redactions were

appropriate in this scenario.

Supplemental Privilege Log #119 and #122 require the same analysis. They are:

caacenev ————Ttelevant posts conmunleatons unreted to Thomas

ne | 22278 | aap owen | tact te nyo) Tet mper nen ort ecm □□□□□□□□□ □□

5050 . Burnside.

soere7? aipia2oie- | Text ea Prot raat cana earn vet or □

2 AAC 09853 Blorsom, Charlotte Mactilivray, Katherine 11/20/2018 | tessaces | | consuting expert regarding pias to wth el au

® This analysis also applies to Ms. Greenbank’s argument as to the “Confidential Post-Suit

Communications” (Supplemental Privilege Log #97, 118, 120, and 121) and “Confidential

Information Irrelevant to Plaintiff's Suit (Supplemental Privilege Log #123 and 124). While

these are not “privileges” recognized by law, Great American used them conjunction with the

relevancy redactions and the description of the redactions gives Ms. Greenbank adequate noticed

about what was removed from the document. It would be inefficient for the parties and the Court

to spend additional time adjusting the privilege log on this non-substantial matter.

24

(Docket No. 48-9 at ECF p. 11). Great American asserts that text messages between Ms.

Bloxsom and Dr. MacGillivray have been redacted, at least in part, due to confidential

discussions made in anticipation of litigation with a consulting expert witness. However, Dr.

MacGillivray has been the primary veterinarian at Hagyard treating Thomas. (Docket No. 48-1 at

ECF p. 209). Thus, Ms. Greenbank argues she is a fact witness and Great American is simply

claiming her as a “consulting expert” to withhold relevant information.

Great American responds that Ms. Greenbank has the text messages between Hagyard

and Great American that she seeks. (Docket No. 57 at ECF p. 30). Great American claims that

Ms. Greenbank moves to compel what she already has in her possession, but then also indicates

that these documents “have been produced in a largely unredacted form by Hagyard in response

to a subpoena sent directly to Hagyard, making Plaintiff’s Motion moot.” (Id.) (emphasis added).

Great American does not respond to the issues Ms. Greenbank has raised with its identification

of Dr. MacGillivray as a consultative expert, but also disclosing her as a fact witness and seeking

to take her deposition. Failure to respond to an argument results in waiver of that argument.

Moreover, the Court does not see how Dr. MacGillivray could serve both roles given that “a

party may not, by interrogatories or deposition, discover facts known or opinions held by an

expert who has been retained or specially employed by another party in anticipation of litigation

or to prepare for trial and who is not expected to be called as a witness at trial.” Fed. R. Civ. P.

26(b)(4)(D). Great American’s response that Hagyard provided the same communications

“largely unredacted” is not persuasive as it gives the Court no indication that the unredacted

portions were the portions that Great American’s supplemental privilege log indicated redactions

for “[c]onfidential discussions made in anticipation of litigation with consulting expert regarding

plans to discuss with legal counsel C. Burnside.” (Docket No. 48-9 at ECF p. 11). Moreover,

Great American has not carried its burden of establishing a sound basis for invoking the asserted

privileges for log entries #119 and 122. (Docket No. 57 at ECF p. 30). The evidence shows Dr.

MacGillivray was one of Thomas’s treating veterinarians that Great American has named as a

fact witness and intends to depose. The Court ORDERS Great American to provide the

documents referenced in supplemental log # 119 (GAAC PRIV 00712-714, GAAC 5026-

5050 and GAAC 00671-672 and GAAC 04853-04854) with any redactions for “confidential

discussions made in anticipation of litigation with consulting expert regarding plans to

discuss with legal counsel C. Burnside” removed by December 11, 2019. Great American

need not remove redactions for relevance as assessed above.

g. Deposition Issues

Ms. Greenbank takes issue with Bloxsom, Moore, and Barcus’s depositions and Great

American’s counsel’s objections to Ms. Greenbank’s counsel’s questions. Ms. Greenbank argues

that these unanswered questions “were directed to obtain factual information about the claims

and defenses.” (Docket No. 50 at ECF p. 33). Ms. Greenbank then provides the Court with

several pages of deposition excerpts that she takes issue with, but only a three-sentence

paragraph conclusory arguing that Great American’s objections were conclusory, and it should

be forced to produce these witnesses for a second deposition and bear the respective costs and

attorney’s fees. (Docket No. 50 at ECF pp. 33–34). Without more explanation, this does not

satisfy Ms. Greenbank’s initial burden on a motion to compel. Moreover, it is obvious that many

of the objections were proper in light of the above discussion. (Docket No. 50 at ECF pp. 31–33,

e.g., Q: “[P]art of the decision-making for the non-renewal and the issuance of the 60-day

renewal would have been based upon communication with counsel?”; “So the decision to send

this Exhibit 25 was based in part upon the advice of counsel?” and “When Dianne gave you that

directive, did she say whether that was based on the advice of counsel?”).7 The answers to each

of these questions may have revealed the content of the advice of counsel—which is

impermissible because Great American has not waived its attorney-client privilege. Likewise,

given the Court’s analysis regarding Ms. Greenbank’s relevance and privilege arguments there is

no basis to take second depositions of Bloxsom, Moore, and Barcus.

h. Ms. Greenbank’s Attorneys’ Fees and Expenses

Ms. Greenbank seeks fees and expenses pursuant to Fed. R. Civ. P. 37(a)(5) and 30(d).

Fed. R. Civ. P. 37(a)(5)(C) provides that if a discovery motion is granted in part and denied in

part, “the court may . . . after giving an opportunity to be heard, apportion the reasonable

expenses for the motion.” The Court declines to award expenses, including attorney’s fees,

related to this motion for several reasons: only small portions of Ms. Greenbank’s wide-

sweeping requests were viable; both sides are responsible for the pugnacious discovery behavior

in this matter that has left the parties seemingly incapable of resolving any disputes without

Court intervention; and Ms. Greenbank’s counsel used inapplicable case law throughout the

briefing, which made the Court’s review of the same more arduous than necessary.

7 On reply, Ms. Greenbank argues “[t]he only way to determine the scope of the ‘good faith’

affirmative defense is to question the decision-makers [as to whether they relied on advice of

counsel to support their actions].” (Docket No. 62 at ECF p. 11). The Court is unpersuaded. See

DR Distributors, LLC v. 21 Century Smoking, Inc., 2015 WL 5123652, at *6 (N.D. Ill. Sept. 1,

2015) (“[There is] a fine line between referencing counsel’s advice (which does not waive the

privilege) and describing that advice and asserting that they relied on it (which would waive the

privilege).”) (internal citation omitted). “[T]he attorney-client privilege is not waived merely

because counsel’s advice may have influenced a litigant’s state of mind and is therefore relevant

to that state of mind. Rather, the privilege is waived when the advice is affirmatively used to

establish a claim or defense.” Id. at *7. If questions to determine whether Great American relied

on the advice of counsel to support its actions were answered it would necessarily give away

what the advice of counsel was, given Ms. Greenbank knows the action took. This is

impermissible without a showing that Great American intends to affirmatively rely on the advice

of counsel in making its good faith defense. See id.

In relevant part, Fed. R. Civ. P. 30(d) provides that “[t]he court may impose an

appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any

party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” The

Court did not find Great American did any of these things, thus this provision is inapplicable.

II. CONCLUSION

In sum, the Court GRANTS in part and DENIES in part Julie Greenbank’s Motion and

Supplemental Motion to Compel (Docket No. 48; Docket No. 53). Great American’s request for

Oral Argument (Docket No. 58) is DENIED as moot. Specifically, the Court ORDERS:

1. Great American is to provide an Amended Supplemental Privilege Log by

December 11, 2019, that provides further detail as to its privilege assertions for GAAC

1688-1708. If necessary, given the various senders and, assumedly, various dates, Great

American’s amended log must include multiple rows for the claim notes so that the necessary

information described above can be included in a way that permits Ms. Greenbank and this Court

to conduct a meaningful review. If—in light of the guidance provided in this entry and the

additional information in the amended log—Ms. Greenbank still believes that any privileges are

improperly invoked, then the parties must meet and confer regarding Ms. Greenbank’s specific

objections. If that meet and confer does not resolve the issue, then each party may select up

to three claim notes for Great American to produce by December 18, 2019, for an in

camera review. If the Court finds that any of these six documents is not privileged, Great

American shall produce all documents from GAAC 1688-1708 unredacted.

2. Great American is to provide the documents referenced in Supplemental

Privilege Log # 119 (GAAC PRIV 00712-714, GAAC 5026-5050 and GAAC 00671-672 and

GAAC 04853-04854) with any redactions for “confidential discussions made in anticipation

of litigation with consulting expert regarding plans to discuss with legal counsel C.

Burnside” removed by December 11, 2019. Great American need not remove redactions for

relevance.

SO ORDERED.

Dated: December 4, 2019

Matthew P. Brookman

United States Magistrate Judge

Southern District of Indiana

Service made electronically to all ECF-registered counsel of record.

29