Fegan v. State Farm Mutual Automobile Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:24-cv-02259-PAB-SBP
MICHELLE FEGAN,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant.
ORDER RESOLVING DISCOVERY DISPUTES
Susan Prose, United States Magistrate Judge
Plaintiff Michelle Fegan brings this first-party insurance action for underinsured motorist
(“UIM”) benefits under a policy issued by Defendant State Farm Mutual Automobile Insurance
Company (“State Farm”). The parties have raised certain discovery disputes by means of the
court’s informal procedures for resolving such disputes outside the context of formal motions
practice. Pursuant to those procedures, the parties submitted Joint Discovery Dispute Statements
on December 16, 2024, and May 14, 2025.1 The court conducted hearings on the disputes on
January 3, 2025, and June 4, 2025, during which a number of the parties’ disputes were resolved.
See ECF No. 14; ECF No. 21 (Jan. 3, 2025 Hr’g Tr.); ECF No. 33 (June 4, 2025 Hr’g Tr.).
In this Order, the remaining discovery disputes are resolved as follows: (1) Plaintiff’s
request for the claim file notes in a related third-party case is granted, subject to the parameters
1 The court will refer to the December 16, 2024 statement as “JDS 1” and the May 14, 2025
statement as “JDS 2” where an abbreviated designation is appropriate.
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defined in this Order; (2) Plaintiff’s related request to depose Tony Clarkson, the adjuster for the
third-party claim, is denied without prejudice; and (3) Plaintiff’s requests for information
concerning the adjuster in this action are granted in part and denied in part, as explained
below.
BACKGROUND
Plaintiff was injured in a motor vehicle accident on September 16, 2022, when the
vehicle she was driving was struck from the rear by a vehicle driven by Holly May. Complaint,
ECF No. 4 ¶ 5. According to Plaintiff, May has acknowledged that the accident was her fault. Id.
¶ 12. At the time of the accident, State Farm insured both drivers. Id. ¶ 16.
In this lawsuit, Plaintiff contends that State Farm has engaged in a series of delay tactics
to avoid paying benefits under her policy.2 State Farm “initially took the position” that Plaintiff
did not have UIM coverage under her policy, prompting Plaintiff to retain an attorney. Id.
¶¶ 17-18. On January 25, 2023, Plaintiff’s counsel sent a letter to State Farm “explaining how
Ms. May was at fault for the car accident and providing medical records demonstrating Mrs.
Fegan’s injuries[.]” Id. ¶ 18. On January 31, 2023, Mr. Clarkson, a State Farm claim specialist,
sent a letter to Plaintiff’s counsel asserting that State Farm did not have “doctor records to
support injury and the extent thereof,” id.¶ 19, even though “supporting medical records had
been sent by email attachment and web-link” to State Farm. Id. ¶ 20. On March 16, 2023,
counsel sent State Farm additional medical records and, in an accompanying letter, voiced
concern that “State Farm is unreasonably delaying the handling of the claim against Holly May
2 The court highlights here those facts pertinent to its conclusions on the pending discovery
disputes.
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to avoid timely payment under Ms. Fegan’s underinsured motorist coverage. I am also concerned
State Farm is unreasonably forcing Mrs. Fegan to file suit against Holly May to recover her
policy limits of $50,000, since Mrs. Fegan’s injuries and losses obviously support damages in
excess of those limits.” Id. ¶ 21.
Additional communications followed, including one from State Farm on May 9, 2023,
which Plaintiff construed as once again suggesting that she had no underinsured motorist
coverage under her policy with State Farm. Id. ¶ 28 (stating that “our records indicate the
following individuals are insured and household residents: Brian Fegan”) (emphasis added) The
same day, counsel sent a letter back to State Farm, asserting that “State Farm knows or should
know it has liability under the underinsured motorist coverage for this accident,” and demanding
that “State Farm promptly pay its policy limits to compensate Mrs. Fegan for her damages
resulting from the car crash.” Id. ¶¶ 29, 44. Plaintiff simultaneously filed a lawsuit against May
in Colorado state court. Id. ¶ 30. That action proceeded for nearly nine months, during which
time Plaintiff responded to written discovery requests and sat for her deposition. Id. ¶ 36.
On December 6, 2023, Plaintiff’s counsel requested that State Farm pay her the May
policy limit of $50,000. Id. ¶ 37. This State Farm ultimately did, sometime on or after January
26, 2024—approximately sixteen months after the accident and about two-and-a-half months
before the scheduled April 9, 2024 trial in the May matter. Id. ¶¶ 38-40.
On February 2, 2024, counsel for Plaintiff sent a letter to State Farm, asserting that “it
had forced Mrs. Fegan to file a lawsuit against the at-fault party to recover benefits owed and
defended the at-fault driver through the entire [] course of litigation (trial had been scheduled for
April 9, 2024) until agreeing to pay Ms. May’s policy limits of $50,000.” Id. ¶ 40. Counsel
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forwarded written discovery from the May litigation “and explained [Plaintiff’s] claimed injuries
and damages in detail.” Id. Cindy Raines, the claim specialist for Plaintiff’s underinsured
motorist claim in the instant case, responded by letter dated March 14, 2024:
Upon reviewing your demand, and the medical bills and records provided, we have
concerns about the mechanism of injury for the severity of Mrs. Fegan’s injuries as
well as questions of the necessity, relatedness, and reasonableness of some of Mrs.
Fegan’s treatment, including the future surgery you are alleging. At this time there
are questions as to whether Mrs. Fegan’s [sic] are related to this accident only and
therefore will require additional review to consider it[.]
Id. ¶ 43. Plaintiff’s counsel responded the same day, stating that State Farm already had the
records Ms. Raines referenced because it had obtained them in the May litigation. Id. ¶ 44.
Counsel further asserted that the accident had “caused significant impairment of Ms. Fegan’s
quality of life,” and renewed Plaintiff’s “request of May 9, 2023 that State Farm promptly pay its
policy limits to compensate Mrs. Fegan for her damages resulting from the car crash.” Id.
As of July 17, 2024, when Plaintiff initiated the current litigation in Arapahoe County
District Court, id. ¶ 45, State Farm had not replied to Plaintiff’s demand. State Farm removed the
case to this court on August 15, 2024. ECF No. 1. In this action, Plaintiff raises three claims:
(1) breach of insurance contract, ECF No. 4 ¶¶ 48-55; (2) a common-law tort claim for bad faith
breach of insurance contract, id. ¶¶ 56-61; and (3) a claim premised on State Farm’s alleged
delay or denial of UIM benefits without a reasonable basis under Colorado Revised Statutes
§§ 10-3-1115 and 10-3-1116. Id. ¶¶ 62-72.
ANALYSIS OF THE DISPUTES
I. 	First Dispute: Request for the Third-Party Claim Notes and Deposition of the
Third-Party Adjuster
The first Joint Discovery Dispute Statement focused on Plaintiff’s requests to depose
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State Farm adjusters Clarkson, Springer, and Raines, as well as the production of the claim notes
from the file in the third-party May litigation. See JDS 1 at 1-10; see also Plaintiff’s Request for
Production No. 4 (“Please produce all log notes for the underlying liability claim against Holly
May.”). At the January 3, 2025 hearing, as pertinent here, the court directed the parties to set the
depositions of Ms. Raines and Ms. Springer. ECF No. 19 at 2. The court also ordered the parties
to submit targeted briefing on State Farm’s objections to producing the May claim file and
Plaintiff’s request to depose Mr. Clarkson. See id. Those are the questions that remain for
resolution now.
A. 	The Parties’ Arguments
In State Farm’s discovery dispute brief, it urges the court not to compel the production of
“attorney-client privileged and work product protected material in the third-party file, and [to]
preclude plaintiff from seeking to obtain that information in . . . depositions of State Farm
personnel”—including, in particular, Mr. Clarkson. Id. at 6. Further, according to State Farm,
“much of the information that would have been in the third-party claim [file] would have post-
dated the litigation commenced against Ms. May and, as such, it would be subject to Ms. May’s
attorney-client privilege, including the work product privilege that applies to materials generated
in anticipation of litigation.” Id. at 5 (citing Lazar v. Riggs, 79 P.3d 105 (Colo. 2003); Hawkins v.
Dist. Ct. In & For Fourth Jud. Dist., 638 P.2d 1372, 1375 (Colo. 1982)). Per State Farm,
Plaintiff would have received those portions of the claim file in the May litigation consisting of
“non-privileged, relevant information of the type generally disclosed in third-party cases in
Colorado: the factual evidence relevant to the disputed issue of whether she was injured and to
what extent, including things like the police report, photos of the accident, and medical records
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and bills, consistent with cases like Hawkins[.]” Id. at 2. State Farm does not contend, however,
that Plaintiff would have received any portion of the May log notes she now seeks here.
Notably, State Farm’s focus on privilege as precluding Plaintiff’s access to the disputed
information reflects a shift in its justification for resisting the production of this discovery. In its
response to Request for Production No. 4, State Farm made no mention of privilege, but instead
focused on that information’s purported lack of relevance to the instant first-party action:
Request for Production 4: Please produce all log notes for the underlying liability
claim against Holly May.
Objection: Defendant objects that this information does not meet the relevancy
threshold and is not discoverable. In Re Silva v. Basin Western, 47 P.3d 1184, 1191
(Colo. 2002); Schierenberg v. Howell-Baldwin, 571 N.E.2d 335, 337 (Ind. Ct. App.
1991); C.R.C.P. 26(b)(3); APL Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 13-
14 (D. Md. 1980); Sunahara v. State Farm Mut. Auto. Ins. Co., 280 P.3d 649, 657-
58 (Colo. 2012).3
3 State Farm’s response states in full:
Defendant objects that this information does not meet the relevancy threshold and is not
discoverable. In Re Silva v. Basin Western, 47 P.3d 1184, 1191 (Colo. 2002); Schierenberg v.
Howell-Baldwin, 571 N.E.2d 335, 337 (Ind. Ct. App. 1991); C.R.C.P. 26(b)(3); APL Corp. v.
Aetna Cas. & Sur. Co., 91 F.R.D. 10, 13-14 (D. Md. 1980); Sunahara v. State Farm Mut. Auto.
Ins. Co., 280 P.3d 649, 657-58 (Colo. 2012). The instant case involves plaintiff’s claim for
first party, UIM benefits, under her contract with State Farm. Plaintiff did not make a claim in
this lawsuit for anything having to do with the third party liability claim, nor could she.
Schnacker v. State Farm Mut. Auto. Ins. Co., 843 P.2d 102, 104-105 (Colo. App. 1992): “The
duty of an insurer to act in good faith when dealing with its insured is recognized and is implied
in law as a covenant of the insurance contract. The basis for liability in tort for the breach of
an insurer’s implied duty of good faith and fair dealing is grounded upon the special nature of
the insurance contract and the relationship which exists between the insured and insurer.
Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo. 1984). That foundation obviously does
not exist for a third party . . . .We . . . decline to recognize a bad faith cause of action against
an insurer by a third party claimant.” Ms. Fegan did not, and could not have, sued State Farm
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Defendant’s Responses to Plaintiff’s First Set of Discovery Requests at 9 (emphasis added).
Plaintiff counters that State Farm’s argument applies “the wrong standard by withholding
records as if the present action is a third-party action when it is instead a first-party action.” ECF
No. 22 at 3. Plaintiff states that she is not raising claims against State Farm “as the third-party
insurer of Holly May,” but rather that she is “asserting first-party bad faith against State Farm as
her first-party insurer.” See id. Therefore, because State Farm’s handling of Plaintiff’s third-party
claim against May allegedly amounted to “a delay tactic to justify prolonged nonpayment of”
Plaintiff’s first-party claim in the instant case, id. at 1, Plaintiff avers that she is entitled to access
the May log notes and to depose adjuster Clarkson in the same manner that she could obtain such
information in a first-party case. Plaintiff further argues that the legal authority to which State
Farm points is distinguishable, id. at 3-4, and that “State Farm improperly attempts to assert
attorney-client privilege and work product protection on behalf of non-party Holly May”—
privileges that Plaintiff asserts State Farm has waived in any event by failing to formally raise
them and by not providing a log of the allegedly privileged documents. Id. at 4.
B. 	Discussion
1. 	Relevance of the Requested Information
Because relevance is the original (and only formally asserted) basis for State Farm’s
resisting Plaintiff’s request for the claim notes in the May third-party case—and, relatedly, any
testimony from third-party adjuster Clarkson with regard to that information—the court begins
with respect to its role as the tortfeasor’s carrier. Constitution Associates v. New Hampshire
Ins. Co. 930 P.2d 556, 561 (Colo. 1996); All Around Transport, Inc. v. Continental Western
Ins. Co., 931 P.2d 552, 556 (Colo. 1996).
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its analysis there. See Response to Request for Production No. 4 (declining to provide responsive
documents based on relevance only).
The court looks to federal law to evaluate State Farm’s argument that the May claim file
notes are not relevant. It is well-established that “[t]he Federal Rules of Evidence generally
govern the admissibility of evidence in a diversity lawsuit.” Griego v. State Farm Mut. Auto. Ins.
Co., 839 F. App’x 258, 262 (10th Cir. 2020) (citing Sims v. Great Am. Life Ins. Co., 469 F.3d
870, 877 (10th Cir. 2006)); see also, e.g., Sipes v. Allstate Indem. Co., No. 11-cv-02369-PAB-
KMT, 2013 WL 12441547, at *2 (D. Colo. Aug. 15, 2013) (“In diversity cases, federal law
generally governs the admissibility of evidence challenged on the basis of relevance.”) (citing
Sims, 469 F.3d at 880).
Rule 401 of the Federal Rules of Evidence directs that evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be without the evidence[.]” Fed. R.
Evid. 401(a). “Rule 401 is a liberal standard” in that it “establishes only a minimal level of
probability,” meaning that “the evidence must render the asserted fact of consequence more
probable than it would be without the evidence.” United States v. Leonard, 439 F.3d 648, 651
(10th Cir. 2006) (citing United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir. 1998)).
Additionally, the court frames its analysis of relevance in accordance with the dictates of Federal
Rule of Civil Procedure 26(b)(1),4 pursuant to which the concept of relevance is “broadly
4 “[P]arties 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.” Fed. R.
Civ. P. 26(b)(1).
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construed”: a request is considered relevant “if there is ‘any possibility’ that the information
sought may be relevant to any party’s claim or defense.” Byron-Amen v. State Farm Mut. Auto.
Ins. Co., No. 21-cv-02364-NYW, 2022 WL 1567563, at *2 (D. Colo. May 18, 2022) (quoting
Martensen v. Koch, 301 F.R.D. 562, 570 (D. Colo. 2014)); Brackett v. Walmart Inc., No. 20-cv-
01304-KLM, 2021 WL 1749975, at *3 (D. Colo. May 4, 2021) (“[R]elevance is not so narrowly
construed as to limit a story to its final chapter, and neither party is entitled to make it impossible
for all meaningful parts of the story to be told.”). Information falling within the broad expanse of
relevance “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
Applying these standards to the question at hand, the court finds there is some possibility
that the May claim file notes will contain information relevant to the finder of fact’s assessment
of Plaintiff’s claims here, including her claim for bad faith breach of her insurance contract. See
Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004) (recognizing that, “[d]ue to the
‘special nature of the insurance contract and the relationship which exists between the insurer
and the insured,’ an insurer’s breach of the duty of good faith and fair dealing gives rise to a
separate cause of action arising in tort”) (quoting Cary v. United of Omaha Life Ins. Co., 68 P.3d
462, 466 (Colo. 2003)). Based on the timeline delineated above, Plaintiff has credibly alleged,
for purposes of obtaining discovery,5 that the insurer (1) acted “unreasonably under the
circumstances” and (2) “knowingly or recklessly disregarded the validity of the insured’s claim.”
Peden v. State Farm Mut. Auto. Ins. Co., 841 F. 3d 887, 890 (10th Cir. 2016); Kisselman v. Am.
Family Mut. Ins. Co., 292 P.3d 964, 970 (Colo. App. 2011) (to state a common law tort claim for
bad faith, the insured must allege facts demonstrating “that (1) the insurer’s conduct was
5 This court, of course, expresses no view on the merits of Plaintiff’s claims.
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unreasonable, and (2) the insurer either had knowledge of or reckless disregard for the fact that
its conduct was unreasonable”).
With this context in mind, consider, for example, a possible reference in the May log
notes to an analysis by a physician retained by State Farm to evaluate Plaintiff’s medical records.
Such information obviously would be relevant to the instant case. Or the log notes also might
reflect discussions among State Farm personnel concerning the insurer’s obligations under its
policy with Plaintiff—perhaps by acknowledging that the policy did in fact provide UIM
benefits, notwithstanding State Farm’s apparent contemporaneous disclaimers of such coverage
in its communications with Plaintiff’s counsel. Such communications, obviously, would be
relevant to Plaintiff’s claim of bad faith in this case, potentially providing factual information
tending to show that State Farm acted unreasonably under the circumstances and with knowing
or reckless disregard of the validity of Plaintiff’s claim. The happenstance of this information
being recorded in a “third party” file does not prevent its disclosure, and State Farm points to no
case supporting that proposition.
The Colorado state cases on which State Farm relies—most prominently, Sunahara and
Silva—create no per se bar to the discovery Plaintiff seeks. Insofar as both decisions analyze
relevance in the context of third-party litigation, these cases do not bind this court, which is
obliged to apply the broad federal standard governing relevance.6 Regardless, neither Sunahara
nor Silva holds that access to claim notes is categorially barred in a third-party uninsured
motorist case, as State Farm implies. The Colorado Supreme Court specifically discussed a
preclusion on access to an insurer’s reserves and settlement authority and its underlying liability
6 Neither Sunahara nor Silva addressed a claim of privilege.
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assessments and fault evaluations. Sunahara, 280 P.3d at 658 (holding that “liability assessments
and fault evaluations underlying an insurance company’s reserves and settlement authority in a
UIM action are not reasonably calculated to lead to admissible evidence7 as required by C.R.C.P.
26(b)(1)”). And even with respect to information regarding settlement authority and reserves,
Sunahara recognized that such information might be relevant and subject to production where, as
in the instant matter, an insured brings a bad faith claim in a first-party case:
[R]eserves and settlement authority—and, under our reasoning in this case, the
liability assessments and fault evaluations underlying those figures as well—might
be relevant and reasonably calculated to lead to admissible evidence when a first-
party plaintiff sues his or her insurance company for bad faith or for a declaratory
judgment. In bad faith . . . actions, evidence of reserves and settlement authority
could shed light on whether the insurance company adjusted a claim in good faith,
or promptly investigated, assessed, or settled an underlying claim. UIM actions
differ from bad faith and declaratory judgment cases because, rather than defending
its own actions, an insurance company in a UIM action must essentially defend the
tortfeasor’s behavior.
Sunahara, 280 P.3d at 657-658 (internal citations to Silva omitted) (bolded emphasis added).
Thus, even if this court were bound to follow Sunahara, that decision “explicitly declined
to extend its holding to situations where, as here, an insured is suing an insurer for bad faith and
the insurer’s own conduct is placed at issue.” Toy v. Am. Fam. Mut. Ins. Co., No. 12-cv-01683-
PAB-MJW, 2014 WL 485962, at *2 (D. Colo. Feb. 6, 2014); see also Bishelli v. State Farm Mut.
Auto. Ins. Co., No. 07-cv-00385-WYD-MEH, 2008 WL 280850, at *3 (D. Colo. Jan. 31, 2008)
(referencing Silva in ordering that the insurer “should produce its level of reserves set aside for
7 Under federal law, the “not reasonably calculated” standard was rendered defunct by the 2015
amendments to Federal Rule of Civil Procedure 26(b), which require that federal courts now
analyze whether the information requested is relevant and “proportional to the needs of the
case.”
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this incident,” and observing “that whether the loss reserves are ultimately relevant to the issue
of bad faith should be left to the district judge to determine prior to or at trial”).
Stated another way, Sunahara and Silva erect no barrier to the production of any aspect
of the May claim file notes in this case in which an insured brings a first-party bad faith claim
against her insurer. Nor does the other caselaw cited by State Farm. The point here isn’t that
Plaintiff would have been prohibited from bringing a direct action against State Farm in its role
as third-party carrier in the May litigation, see ECF No. 20 at 2-3 (discussing Farmers Ins. Exch.
v. Dist. Ct. for Fourth Jud. Dist., 862 P.2d 944, 949 (Colo. 1993)),8 or that a UIM insurer must
pay benefits “whether the insured recovers the full amount or nothing at all from the liable
party’s insurer[.]” Id. at 5. What is determinative here is Plaintiff’s assertion that State Farm
unreasonably delayed its handling of her first-party claim pending the outcome of the May third-
party case. Viewed in that context, the May log notes may contain information relevant to
Plaintiff’s bad faith and unreasonable delay claims in the instant action. Considering the broad
federal definition of relevance to which this court must adhere, the undersigned respectfully finds
no justification for placing an artificial barrier between these two obviously factually-intertwined
matters.
Plaintiff points to no precedent supporting the proposition that notes from a third-party
8 This court does not read Farmers as holding that an insured could never bring suit against the
third-party carrier, but only that the plaintiff’s lawsuit in the particular circumstances there was
premature: “A trial court may not provide declaratory relief to a plaintiff who attempts to litigate
the question of the limits of an alleged tortfeasor’s insurance coverage prior to judgment against
the tortfeasor.” See 862 P.2d at 949 (holding that the plaintiff did not have standing to bring a
declaratory judgment action against the insurer of the tortfeasor “[u]ntil her claim is reduced to
judgment”) (emphasis added). Regardless, the court’s resolution of the dispute at hand does not
hinge on this point.
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claim file are per se irrelevant and subject to exclusion from discovery in a related first-party
case, where the same insurer is involved and the third-party notes may bear on the questions of
bad faith or unreasonable delay in the first-party matter. Neither has this court located such a
case, after conducting extensive research across all federal jurisdictions. The court therefore
finds no basis to prohibit production of the May log notes on relevance grounds. It may be that
some portion of the notes, even if relevant evidence, ultimately might be subject to exclusion as
unfairly prejudicial. See Fed. R. Evid. 403. But such admissibility questions are for Chief Judge
Brimmer to address at the proper time, not for this court to decide in the context of a discovery
dispute. See Bishelli, 2008 WL 280850, at *3.
2. 	Potential Claims of Privilege or Work-Product Protection
To be sure, some of the information in the May claim file notes could be protected by the
attorney-client privilege or the work-product doctrine, as State Farm now declares—albeit in a
rather sweeping and non-specific manner and without drilling down on specifics or producing a
privilege log. See generally ECF No. 20 at 5-6. Regardless, the court is disinclined to find, as
Plaintiff urges, that State Farm has waived these privilege arguments, see ECF No. 22 at 4, in
light of their having being raised in connection with the court’s informal discovery-dispute
procedures, which afforded Plaintiff notice and an opportunity to respond. Accordingly, the court
will address these possible alternative grounds for exempting the May log notes from discovery.
To begin with the work-product doctrine, federal law governs the assessment of work
product issues that arise in this court, even in diversity cases like this one. See Frontier Refining,
Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998) (referencing Fed. R. Civ.
P. 26(b)(3)); see also Menapace v. Alaska Nat’l Ins. Co., No. 20-cv-00053-REB-STV, 2020 WL
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6119962, at *12 (D. Colo. Oct. 15, 2020) (same). While a party may not ordinarily “discover
documents and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative”—that is, work product-protected materials—“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.” Fed. R. Civ. P. 26(b)(3)(A).
Defendant State Farm bears the burden of establishing that the materials sought to be
protected were prepared in anticipation of litigation or for trial. E.E.O.C. v. Outback Steakhouse
of Fla., 251 F.R.D. 603, 610 (D. Colo. 2008). Importantly, “[b]ecause the work product doctrine
is intended only to guard against divulging the attorney’s strategies and legal impressions, it does
not protect facts concerning the creation of work product or facts contained within work
product.” Id. (quoting Resol. Tr. Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995)); see also,
e.g., Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 627 (N.D. Okla. 2009) (“[T]he
Restatement expressly excepts ‘underlying facts’ from work product protection. ‘Work product
consists of tangible material or its intangible equivalent in unwritten or oral form, other than
underlying facts . . .’”) (quoting Restatement (Third) of the Law Governing Lawyers § 87(1)
(2000) (emphasis in original)).
State Farm now contends that “much of the information that would have been in the third-
party claim would have post-dated the litigation commenced against Ms. May and, as such, it
would be subject to . . . that work product privilege that applies to materials generated in
anticipation of litigation.” ECF No. 20 at 5 (emphasis added). Perhaps there is protected work
product in the May claim file, although it is by no means a foregone conclusion that the log notes
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would consist exclusively of attorney-generated strategies and impressions without reference to
the underlying facts. As State Farm’s previous production of selected factual information
acknowledges, see ECF No. 20 at 2 (averring that State Farm has produced from the May claim
file the “non-privileged, relevant information of the type generally disclosed in third-party cases
in Colorado,” ECF No. 20 at 2), facts contained in the May log notes are not shielded by the
work-product doctrine.
On this record, then, State Farm has not met its burden to demonstrate that the May log
notes, in their entirety, consist of “an attorney’s strategies and legal impressions” and are devoid
of unprotected factual content. See Resol. Tr. Corp., 73 F.3d at 266. The court therefore finds no
basis to conclude, on the current record, that those notes are wholly enveloped in a blanket of
work-product protection. Likewise does the court decline to make a before-the-fact proclamation
that the attorney-client privilege protects the May log notes in total.
Because subject matter jurisdiction in this matter is founded on diversity of citizenship
under 28 U.S.C. § 1332(a), Colorado law governs questions of attorney-client privilege. See Fed.
R. Evid. 501; see also Frontier Refining, 136 F.3d at 699. Like the work-product doctrine, the
privilege “protects only the communications to the attorney; it does not protect any underlying
and otherwise unprivileged facts that are incorporated into a client’s communication to his
attorney[.]” Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000) (emphasis added). And “[n]o
blanket privilege for all attorney-client communications exists. Rather, the privilege must be
claimed with respect to each specific communication and, in deciding whether the privilege
attaches, a trial court must examine each communication independently.” Wesp v. Everson, 33
P.3d 191, 197 (Colo. 2001)). “The burden of establishing that a particular communication is
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privileged rests on the party asserting the privilege.” Id. at 198. As with its invocation of the
protection of the work-product doctrine, State Farm at this time has not met its burden to
establish that any portion of the May log notes must be withheld on the basis of the attorney-
client privilege.
* 	* 	*
Consistent with the foregoing analysis, State Farm is ordered to produce, within 21 days
of the date of this Order, the log notes from the May claim file. State Farm shall concurrently
provide a detailed privilege log covering any redacted information for which it claims the
protections of the work-product doctrine or the attorney-client privilege. If Plaintiff disputes that
any documents are properly withheld, the parties shall contact the chambers of the undersigned
by joint email, explaining their disagreement, their good-faith efforts to resolve the dispute, and
whether they believe an in camera review of the claim notes will be required.
As for Plaintiff’s related request to depose Mr. Clarkson, the adjuster for the May third-
party claim, this request is denied without prejudice. The court finds it expedient to evaluate
that question following the production of the May claim file notes and the resolution of any
privilege disputes concerning that production. In that more definite context, the court will be in a
better position to evaluate whether Mr. Clarkson possesses unique, relevant information such that
his deposition would not be unreasonably cumulative of the testimony of other witnesses or
otherwise disproportional to the needs of the case.
II. 	Second Dispute: Information Concerning the First-Party Adjuster
In the second Joint Discovery Dispute Statement, the parties asked the court to resolve a
disagreement concerning State Farm’s refusal to respond to one interrogatory and two requests
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for production concerning Ms. Raines’s work as an adjuster for State Farm:
Interrogatory No. 8: Please identify the other Colorado UM/UIM lawsuits that
Cindy Raines testified about being deposed in during her deposition for the present
case, including the names of the parties, the names of the attorneys, the case
numbers, and the venue in which the case was or is pending.
Request for Production 17: Please produce all performance review documents
related to Cindy Raines from the beginning of her employment with State Farm to
present.
Request for Production 18: Please produce the deposition transcripts of Cindy
Raines from the other Colorado UM/UIM lawsuits she testified about being
deposed in during her deposition for the present case.
Plaintiff contends she needs this information because Ms. Raines—whose claim handling
“State Farm and Ms. Raines are resolute in defending” here—testified that she had been deposed
five times (including in this case) since the beginning of her employment with State Farm in
February 2023, and that it is “extraordinary for a Colorado UM/UIM adjuster to be deposed five
times in two years.” JDS 2 at 3. Plaintiff further asserts that the information she seeks is
probative of a “modus operendi” suggested in Ms. Raines’s apparently heavy claim load and
statements indicating she checked some of these claim files only once a year. Id. Plaintiff says
that she “should be permitted to compare Ms. Raines’s statements about her claim handling,
State Farm business practices, and her training with her testimony from the other Colorado
UM/UIM cases to understand the credibility of her testimony in this case.” Id.
In opposing this discovery, State Farm counters that “[t]he mere fact that a plaintiff
brings a bad faith claim and deposes a claim adjuster has nothing whatsoever to do with whether
claims are meritorious,” and that courts have labeled discovery requests like these “fishing
expeditions.” Id. at 6. State Farm disputes that Ms. Raines’s testimony in other matters is
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relevant for impeachment and avers that Plaintiff has no facts to support her assertion that five
depositions in two years for a claim adjuster is an “extraordinary” amount. Id. As for the request
for performance reviews, State Farm asserts that it is overly broad, not proportional to the needs
of the case, and improperly invades Ms. Raines’s privacy. Id. at 9-10. State Farm contrasts the
“extensive applicable legal authority” in support of its position with Plaintiff’s reference to a
single, out-of-Circuit case: Harvey v. GEICO, 259 So.3d 1 (Fla. 2018), which State Farm
contends “did not even address discoverability of personnel files or transcripts, much less
establish such information is ‘commonly’ used.” Id. at 10-11 (emphasis in original).
A. 	Information from Other Lawsuits
To begin with the question of access to Ms. Raines’s testimony in four other depositions,
Ms. Raines recalled in her deposition in this case the month in which each of those depositions
had occurred and the names of the defense counsel (who presumably represented her in those
depositions and prepared her for them). She specifically named these attorneys, each of whom
practices in the Denver metropolitan area:
• 	Karl Chambers of Patterson Ripplinger: May 2024 deposition
• 	Jami A. Maul of Wheeler Law: September 2024 deposition
• 	Rebecca Wagner of Campbell, Wagner and Frazier, LLC: December 2024 deposition:
• 	Sheryl Anderson of Thompson Coe: January 2025
See JDS 2, Ex. 1, Raines Depo. Tr. 42:25-43:17. The identification of the firms with which each
counsel is currently associated was made by this court, by means of a simple internet search.
In light of this known information, the court respectfully rejects the idea, posited by
defense counsel at the discovery conference, that it would be impossible to “know where to
begin” to identify the basic case information sought in Interrogatory No. 8. Doing so would not
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be an exceptionally burdensome task. As the deponent in each of these matters, Ms. Raines
should have reviewed the transcripts before signing them. A check of her State Farm email
account will quickly verify this point. If email communications concerning these depositions are
now inaccessible for some reason, a brief telephone call to each of the attorneys Ms. Raines
already has identified (either from Ms. Raines or defense counsel) should suffice to enable State
Farm to produce the very basic information requested concerning each matter.
The court therefore directs that State Farm provide the rest of the information Ms. Raines
partially conveyed in her deposition by responding to Interrogatory No. 8. Additionally, State
Farm shall provide the names of the court-reporting services that transcribed Ms. Raines’s
deposition testimony in each case. With that information, Plaintiff can contact those services
directly to purchase copies of the transcripts, subject to any previously-applied confidentiality
redactions, if she chooses.9 This is precisely what any litigant could do, with the name of a case
in hand. State Farm made no objection during Ms. Raines’s deposition to her identifying the
other cases in which she had been deposed, nor could it have. Such information is not ordinarily
privileged, and there is nothing in the record suggesting that it would be shielded by any such
protection in this instance.
The court appreciates State Farm’s argument that no negative inference should be drawn
from the number of times an insurance adjuster has been deposed, especially Colorado, where a
9 This court will not deprive those businesses of their entitlement to compensation for their work
product by requiring State Farm to provide free copies of the transcripts, which might also
violate contractual obligations between State Farm and the reporters.
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statute authorizes double damages in cases like this one.10 And State Farm also may be correct
that information about Ms. Raines’s handling of other cases ultimately may stray so far afield as
to render it inadmissible. Decisions by State Farm in those other actions likely depended on the
policy language and the facts of the particular cases, which are necessarily different from the
policies and facts animating this case. Here, however, where Ms. Raines already has provided a
significant portion of the requested information, and producing the remainder cannot reasonably
be characterized as sweeping so broadly as to be overly burdensome—this court located, with
little effort, a portion of it—the question of its admissibility is properly left to another day. See
Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in
evidence to be discoverable.”).
State Farm therefore is respectfully ordered to respond to Interrogatory No. 8 in
accordance with the foregoing parameters within 21 days of the date of this Order. State Farm,
however, is not required to produce copies of the deposition transcripts as requested in Request
for Production No. 18.
B. 	The Adjuster’s Performance Reviews
What remains is the question whether to order production of Ms. Raines’s performance
reviews. According to Plaintiff, these documents are “directly relevant to Colorado’s unfair
claims settlement practices statute, C.R.S. 10-3-1104(h), which plaintiff has alleged State Farm
violated,” JDS 2 at 4, and would elicit information concerning “what portion of this conduct is
10 Indeed, as United States Magistrate Judge N. Reid Neureiter explained in his recent statistical
review of the court’s work in 2024, insurance cases ranked third in number of all civil cases filed
in this District, behind only civil rights/employment matters and prisoner petitions.
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attributable to State Farm’s training and management.” Id. at 6. State Farm counters that the
production of Ms. Raines’s performance reviews “would amount to production of personnel
records without a signed authorization, which would constitute an invasion of privacy,” and that
“employees have an expectation of privacy in their employment records.” Id. at 10 (citing
Corbetta v. Albertson’s, Inc., 975 P.2d 718, 721 (Colo. 1999), and In re District Court, 256 P.3d
687, 691 (Colo. 2011)). State Farm additionally points to Colorado statutory law generally
barring the inspection of public records containing personnel files, id. (citing Colo. Rev. Stat.
§ 24-72-204(3)(a)(II)(a), and contends that Plaintiff has not shown that the adjuster’s
performance reviews are relevant; that their disclosure is requested to serve a compelling state
interest; or that there is an otherwise compelling need for the information. Id. (citing Stone v.
State Farm, 185 P.3d 150 (Colo. 2008)).
Under the Federal Rules of Civil Procedure, which govern this discovery question, a
court has discretion to issue an order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” Fed. R. Civ. P. 26(c)—in essence, the
relief State Farm requests in resisting production of Ms. Raines’s performance reviews. In that
regard, “[a]lthough privacy interests . . . are not weighed in the same way privilege claims are
weighed, courts have held that where a state doctrine promotes confidentiality and does not
conflict with federal interests it may be taken into account as a matter of comity.” Am. Ins. Co. v.
Pine Terrace Homeowners Ass’n, No. 20-cv-00654-DDD-MDB, 2023 WL 6796161, at *2 (D.
Colo. Apr. 17, 2023) (citing Scholl v. Pateder, No. 09-cv-02959-PAB-KLM, 2011 WL 3704802,
at *2 (D. Colo. Aug. 23, 2011); Gottlieb v. Wiles, 143 F.R.D. 235, 237 (D. Colo. 1992)).
Upon a review of the applicable law, the court finds that the four-factor balancing test
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enunciated in In re District Court does not conflict with federal interests and sets forth the
governing legal framework in this context. See id. at *1 (applying In re District Court in
evaluating an argument that adjusters’ performance reviews should be produced because they
“may shed light on the adjusters’ knowledge and motives”). As articulated in In re District
Court, four factors must be satisfied before the court can order production of confidential
materials:
The party requesting the information must always first prove that the information
requested is relevant to the subject of the action. Next, the party opposing the
discovery request must show that it has a legitimate expectation that the requested
materials or information is confidential and will not be disclosed. If the trial court
determines that there is a legitimate expectation of privacy in the materials or
information, the requesting party must prove either that disclosure is required to
serve a compelling state interest or that there is a compelling need for the
information. If the requesting party is successful in proving one of these two
elements, it must then also show that the information is not available from other
sources. Lastly, if the information is available from other sources, the requesting
party must prove that it is using the least intrusive means to obtain the information.
See 256 P.3d at 691-92. This analysis comports with the Tenth Circuit’s longstanding
recognition that caution should be exercised before permitting the disclosure of information
contained in personnel files. As the Court of Appeals has observed, “personnel files often contain
sensitive personal information,” and it is “not unreasonable to be cautious about ordering their
entire contents disclosed willy-nilly.” Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th
Cir. 2008). Caution is particularly appropriate where, as here, the personnel information at issue
concerns a non-party. See Gateway Logistics, Inc. v. Smay, 302 P.3d 235, 241 (Colo. 2013) (“We
also conclude that the trial court should take [the defendant’s] wife’s status as a nonparty into
consideration as a factor weighing against disclosure when applying the In re District Court
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balancing test[.]”).
Turning to the prongs of the In re District Court balancing test, the court first observes
that it is respectfully unpersuaded by Plaintiff’s argument that there is relevant information to be
derived from Ms. Raines’s performance reviews. Plaintiff asserts that these documents will shed
light on unfair settlement claims practices and supposed deficiencies in State Farm’s training
and management, but logically, it is difficult to see how that can be so. If State Farm praises Ms.
Raines’s performance, that is merely consistent with its view that her claims-management
practices comply with professional and legal standards, information that is neither new nor
uniquely probative. To the extent Plaintiff disagrees that Ms. Raines’s performance is positive,
that does not mean that the reviews contain any revelatory information; it simply shows that
Plaintiff takes a different view of the matter. Too, it appears unlikely that a performance review
would call out Ms. Raines’s work on a specific claim, and so it seems wholly speculative to
suppose that a particular performance review could readily be correlated with Ms. Raines’s
work on the instant case. And if State Farm in some way criticizes Ms. Raines’s performance in
an evaluation, it is similarly unclear how that criticism might be ascribed to State Farm’s
“business practices,” as opposed to a simple assessment of under-performance by an employee.
At bottom, an examination of the contents of Ms. Raines’s performance evaluations
appears more calculated to devolve to a play within a play, extraneous to the main event, than to
eliciting relevant information. The court therefore finds that Plaintiff has not met her burden to
prove that the information requested is relevant.
As for the second In re District Court factor, as previously stated, there is undoubtedly a
legitimate expectation of privacy in documents in employee personnel files. See Regan-Touhy,
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526 F.3d at 648-49.
Third, for the same reasons indicating that relevance is lacking, Plaintiff likewise has not
demonstrated a compelling need for access to Ms. Raines’s sensitive personnel information. She
has not shown that the information could not have been gleaned from other sources. In fact, the
record suggests that Plaintiff had access to this information by multiple other means, including
by examining the documents contained in the claim file (in particular, the log notes) and by
reviewing other business records and policies maintained by State Farm—which the record
indicates State Farm has produced. See Defendants’ Response to Plaintiff’s First Set of
Discovery Requests at 4-7 (referencing production of State Farm business records). Furthermore,
Plaintiff had the opportunity to question Ms. Raines—and, for that matter, any other State Farm
official she requested to depose—about State Farm’s business practices and any guidance or
directives she received from her employer with respect to her handling of Plaintiff’s claim.
Plaintiff also might have inquired of Ms. Raines about any criticisms or accolades she received
in her performance reviews. The existence of these direct avenues for obtaining this information
negates the idea that Plaintiff has a compelling need to obtain the sensitive personnel records of a
non-party.
Finally, the court finds that, given the facts and circumstances of this case, Plaintiff has
failed to prove that Ms. Raines’s performance reviews, which indisputably contain sensitive
information, are the least-intrusive means for Plaintiff to obtain information about State Farm’s
business practices. The content of these performance reviews, even if tangentially relevant,
would be duplicative of information Plaintiff already has in her possession or readily could have
obtained by means other than invading Ms. Raines’s privacy interests.
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Having applied the In re District Court factors to the record here and found that, on
balance, they weigh against the production of Ms. Raines’s confidential personnel materials, the
court concludes that State Farm need not respond to Plaintiff’s Request for Production No. 17,
which seeks Ms. Raines’ performance reviews from the beginning of her employment with State
Farm to present.
CONCLUSION
For the reasons set forth above, the court respectfully ORDERS as follows:
(1) Plaintiff’s request for the claim file notes in the related third-party May litigation is
granted, subject to the parameters defined in this Order;
(2) Plaintiff’s related request to depose third-party adjuster Clarkson is denied without
prejudice; and
(3) Plaintiff’s requests for information concerning the adjuster in the instant case are
granted in part and denied in part, as delineated in this Order.11
11 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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DATED: November 4, 2025 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
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