United States District Court, D. Nebraska
CENTRAL VALLEY AG COOPERATIVE, for itself and as Fiduciary of the Central Valley Ag Cooperative Health Care Plan, Plaintiff,
DANIEL K. LEONARD, SUSAN LEONARD, THE BENEFIT GROUP, INC., ANASAZI MEDICAL PAYMENT SOLUTIONS, INC., CLAIMS DELEGATE SERVICES, LLC, and GMS BENEFITS, INC., Defendants.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
following motions are pending before me and fully submitted:
Filing No. 178 Motion to Compel filed by The Benefit
Group, Inc. (TBG) for Production of Unredacted Kutak Rock
Filing No. 181 Plaintiff's Motion to Compel
Production of Documents from Defendant TBG; and
Filing No. 184 Plaintiff's Motion to Compel
Production of Documents from Defendants Anasazi Medical
Payment Solutions, Inc. (AMPs), and Claims Delegate Services,
reasons discussed below, TBG's motion, (Filing No.
178) will be granted; Plaintiff's motion to compel
directed to TBG (Filing No. 181), will be denied;
and as to Plaintiff's motion to compel, (Filing No.
184), AMPs and CDS will be ordered to confirm that its
production is complete and state under oath that all
requested documents have been produced.
Motion to Compel Production of Unredacted Kutak Rock
Invoices (Filing No. 178)
Central Valley Ag Cooperative (CVA) alleges Defendants
violated ERISA by failing to pay, or to adequately pay,
claims submitted by health care providers to the Central
Valley Ag Cooperative Health Care Plan (the
“Plan”). As part of its damage claim, Plaintiff
seeks recovery of $138, 000 in attorney fees CVA paid to the
Kutak Rock law firm, and over $17, 000 in fees it paid to
Plaintiff's expert, Jean Reed, to negotiate and settle
the unpaid or partially paid claims against the Plan.
(Filing No. 180-5, at CM/ECF p. 3, ¶¶
discovery, TBG demanded production of the Kutak Rock billing
documents underlying Plaintiff's $138, 000 damage claim.
CVA has provided redacted versions of those documents, and
asserts the portions redacted are protected from disclosure
under the attorney-client privilege and the work product
doctrine. (Filing No. 180-4). TBG argues any
privilege or work product protection was waived when CVA
placed the invoices and the work they reflect at issue. TBG
seeks unredacted invoices.
courts follow federal attorney-client privilege law in all
federal cases other than civil diversity actions (Fed. R.
Evid. 501), and apply the federal work product doctrine in
all federal cases. Baker v. GMC, 209 F.3d 1051, 1053
(8th Cir. 2000). Plaintiff seeks recovery under ERISA. Thus,
the question presented is whether, as to both the
attorney-client privilege and the work product doctrine,
federal law permits Plaintiff to redact information from the
Kutak Rock invoices supporting CVA's claim to recover
attorney fee expenses.
federal attorney-client privilege law, when a party places
privileged matters at issue as evidence in a case, it thereby
waives the privilege as to all related privileged matters on
the same subject. Tasby v. United States, 504 F.2d
332, 336 (8th Cir. 1974) (applying federal law). The
“at issue” implied waiver of the attorney-client
privilege was explained by the United States Supreme Court in
in Hunt v. Blackburn, 128 U.S. 464 (1888). As
explained in Hunt,
The rule which places the seal of secrecy upon communications
between client and attorney is founded upon the necessity, in
the interest and administration of justice, of the aid of
persons having knowledge of the law and skilled in its
practice, which assistance can only be safely and readily
availed of when free from the consequences or the
apprehension of disclosure. But the privilege is that of the
client alone, and no rule prohibits the latter from divulging
his own secrets.
Hunt, 128 U.S. at 470 (1888).
party places the attorney's services at issue in the
case, any privilege as to the services rendered is waived.
Id. Allowing the attorney-client privilege to shield
documents at the heart of the proponent's case would
undermine the adversary system by permitting only one side to
have full access to the facts. A party's reliance on its
own attorney's communications to advance a claim is a
waiver as to all other communications on the same matter
“because the privilege of secret communication is
intended only as an incidental means of defense, and not as
an independent means of ...