Moorer v. Nationwide Property and Casualty Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-03254-GPG-KAS
LEE MOORER, Dr.,
Plaintiff,
v.
NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff Lee Moorer’s oral Motion to Compel
Production of Unredacted Documents from Defendant Nationwide’s Claim File. The
Court held a discovery dispute hearing on this and other issues on September 22, 2025.
Courtroom Minutes [#46]. The Court ruled on all issues but took this one under
advisement to allow for in camera review of the at-issue documents, which have been
withheld on attorney-client privilege, work product, and relevance grounds. See id. At the
discovery hearing’s conclusion, defense counsel provided the Court with a binder
containing documents for in camera review. Also pursuant to court order, Plaintiff’s
counsel emailed to chambers an amended dispute chart focusing on the in camera
documents, and both parties emailed produced communications relevant to the statute of
limitations and to the issue of when a substantial probability of litigation arose. The Court
has reviewed the record from the September 22, 2025 hearing, the parties’ post-hearing
submissions, Defendant’s privilege log, Plaintiff’s Amended Discovery Dispute Chart, the
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in camera documents, and the applicable law. For the reasons discussed below, Plaintiff’s
oral Motion to Compel is GRANTED in part and DENIED in part.
I. 	Background
This insurance coverage dispute, which is pending in this District on diversity
jurisdiction grounds, arises from an October 10, 2019 motor vehicle collision involving
Plaintiff and a nonparty tortfeasor. Following the collision, Plaintiff settled his claim with
the nonparty. A few years after the collision, Plaintiff submitted a policy limit demand to
Defendant Nationwide, through which Plaintiff had uninsured/underinsured motorist
coverage. Defendant investigated Plaintiff’s claim and denied the claim on October 23,
2024. On November 5, 2024, Plaintiff filed suit in Colorado District Court, see Compl. [#4],
and Defendant subsequently removed the case. See Notice of Removal [#1]. Plaintiff
lodges claims for (1) breach of contract; (2) common law bad-faith breach of contract in
violation of Colo. Rev. Stat. § 10-3-1104; and (3) unreasonable delay and denial in
violation of Colo. Rev. Stat. §§ 10-3-1115 and 1116.
II. 	Legal Standards
The Federal Rules of Civil Procedure permit parties to 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 factors including “the parties’ relative access to
relevant information” and “the importance of the discovery in resolving the issues.” Fed.
R. Civ. P. 26(b)(1).
In this diversity suit, Colorado law, as the law of the forum, governs issues
regarding the scope of the attorney-client privilege. See Motley v. Marathon Oil Co., 71
F.3d 1547, 1551 (10th Cir. 1995); see also FED. R. E VID. 501. “The privilege extends to
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confidential communications by or to the client in the course of gaining counsel, advice,
or directions with respect to the client’s rights or obligations.” Mountain States Tel. & Tel.
Co. v. DiFede, 780 P.2d 533, 541 (Colo. 1989).
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,”
i.e., 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). Federal Rule of
Civil Procedure 37(a)(3)(B), permits a party seeking discovery to move for an order
compelling production of information if a party fails to produce documents.
Federal law governs work product privilege issues that arise in federal court, even
in diversity cases such as this. See Frontier Refin., 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 6119962, at *12
(D. Colo. Oct. 15, 2020). To establish work-product protection, Defendant Nationwide
bears the burden of establishing that the materials sought to be protected are documents
or tangible things that 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). “Because 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)).
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To determine whether documents were prepared in anticipation of litigation, courts
consider “whether, in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained
because of the prospect of litigation.” Martin v. Monfort, Inc., 150 F.R.D. 172, 173 (D.
Colo. 1993) (citing 8 WRIGHT & MILLER, FEDERAL P RACTICE & P ROCEDURE § 2024); Ownby
v. United States, 293 F. Supp. 989 (W.D. Okla. 1968)); see also Menapace, 2020 WL
6119962, at *13.
Two kinds of protected work product exist: (1) fact work product; and (2) opinion
work product. In re Qwest Commc’ns Int’l, Inc. Sec. Litig, No. 01-cv-01451, 2005 WL
7987529, at *2 (D. Colo. Aug. 15, 2005). “Fact work product” consists of “materials
generated by attorneys that are not opinion work product; e.g., witness statements,
investigation reports, photographs, diagrams, and charts prepared in anticipation of
litigation for trial preparation.” Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 626 (N.D.
Okla. 2009); see also Qwest Commc’ns, 2005 WL 7987529, at *4 (concluding that
attorney notes made during an investigative interview, which were made to record and
preserve witness statements through direct quotes or paraphrasing—without including
attorney’s mental or thought processes—constitute fact work product).
Opinion work product includes “memoranda analyzing law or fact, trial strategy,
strengths and weaknesses of a case, legal theory, and the application of the law to the
facts (but not bare facts or legal theory alone); selections or compilations of documents
or data which reveal counsel’s thought processes; and attorney notes of witness
interviews.” Tyson Foods, Inc., 262 F.R.D. at 626.
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The “substantial need/undue burden test [in Fed. R. Civ. P. 26(b)(3)(A)] applies . .
. to fact work product,” and it “encourages attorneys to prepare thoroughly for trial without
fear that their thoughts and efforts will be disclosed to an opponent.” Frontier Refin., 136
F.3d at 704 n.12. Opinion work product, however, is subject to protection akin to “absolute
protection.” Qwest Commc’ns, 2005 WL 7987529, at *2; accord Upjohn Co. v. United
States, 449 U.S. 383, 401 (1981) (concluding that the “substantial need” and “without
undue hardship” test does not apply to opinion work product).
III. Analysis
This discovery dispute arises from Defendant Nationwide’s production of dozens
of pages of the claim file with redactions. Defendant contends that the redactions concern
protected work product because they consist of communications made after a substantial
probability of litigation arose. Defendant proposes four different dates for when litigation
because substantially probable. First, Defendant appears to contend that litigation
became substantially probable in August 2022, when it commenced adjusting Plaintiff’s
claim because Plaintiff had already retained counsel. Second, Defendant contends that
litigation became substantially probable on February 27, 2024, when Plaintiff’s counsel
threatened to file suit if the claim was not paid in 30 days. Hr’g Audio 1:42:57-1:43:08.
Third, Defendant argues that litigation became substantially probable on May 29, 2024,
when Plaintiff first raised a concern about the speed of the claims adjusting given the
anticipated running of the statute of limitations in a few months. Id. at 1:43-08-1:43:14.
Fourth, Defendant argues that litigation became substantially probable on October 1,
2024, when Plaintiff again raised the statute of limitations issue and proposed that the
parties enter into a tolling agreement. Id. at 1:43:14-1:43:19. Defendant also contends
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that some of the redactions concern attorney-client privileged communications because
they concern communications between its claim representatives and its outside counsel.
Plaintiff on the other hand contends that litigation did not become substantially
probable until October 23, 2024, when Defendant denied Plaintiff’s claim. Thus, Plaintiff
argues that most of the redactions do not concern work product. Additionally, Plaintiff
argues that the attorney-client privilege does not apply to the withheld communications
with attorneys whom Defendant retained to investigate and adjust the claim.
A. 	When did a substantial probability of litigation arise?
“[A] substantial part of an insurance company’s business is to investigate claims
made by an insured against the company or by some other party against an insured”;
therefore, such investigations are presumed to be “part of the normal business activity of
the company” and documents generated during that activity “are [deemed] ordinary
business records as distinguished from trial preparation materials.” Hawkins v. Dist. Ct.,
638 P.2d 1372, 1378 (Colo. 1982) (quoted in Menapace, 2020 WL 6119962, at *14). Of
course, circumstances may arise where “an insurance company’s investigation of a claim
. . . shift[s] from an ordinary business activity to conduct ‘in anticipation of litigation,’” but
no bright line delineating the shift exists. Hawkins, 638 P.2d at 1378 (quoted in Menapace,
2020 	WL 	6119962, 	at 	*14). 	Thus, 	an 	“insurance 	company 	has 	the 	burden 	of
demonstrating that the document that was prepared or obtained in order to defend the
specific claim which already had arisen and” a “substantial probability” of litigation over
the claim existed “when the documents were prepared or obtained.” Id. at 1379 (quoted
in Menapace, 2020 WL 6119962, at *14).
Just as an insurance company’s investigation of a claim may shift from ordinary
business activity to conduct in anticipation of litigation, so may an attorney’s role shift.
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Consequently, the work product doctrine does not protect communications from a lawyer
to an insurance carrier when the lawyer acts in an investigative capacity rather than as a
counselor of the law. See Menapace, 2020 WL 6119962, at *5 (discussing Munoz v. State
Farm Mut. Auto. Ins. Co., 968 P.2d 126, 130 (Colo. App. 1998)); see also id. at *10 (noting
consistent findings among courts “that, even where an attorney’s involvement crosses the
line into the role of claims adjuster, communications between the attorney and the insurer
involving legal advice regarding the claim are still protected”).
Based on the Court’s in camera review of the claim file, the Court concludes that
Defendant has not met its burden of establishing that the entire claim file’s contents were
prepared in anticipation of litigation or for trial.
At the outset, the Court considers when litigation over Plaintiff’s claim became
substantially probable. The Court rejects Defendant’s argument that litigation became
substantially probable as early as August 2022, when the claims adjusting phase began.
While an insured’s submission of a claim “almost always” creates “the potential for
litigation,” 	courts 	have 	consistently 	“rejected 	the 	argument 	that 	‘any 	investigation
undertaken by the insurer and all associated documents are made in anticipation of
litigation[.]” Menapace, 2020 WL 6119962, at *14 (quoting Hill v. W. Door, No. 04-cv-
00332-REB-CBS, 2005 WL 8171443, at *3 (D. Colo. Aug. 1, 2005) (collecting cases)). To
hold 	otherwise 	“would 	‘improperly 	‘allow 	an 	insurance 	company 	to 	insulate 	all
investigative materials generated in every case involving serious injuries long before any
coverage decisions are made or threats of litigation arise.’” Id. (quoting Cornhusker Cas.
Co. v. Skaj, No. 11-CV-100-S, 2012 WL 12541136, at *2 (D. Wyo. Apr. 5, 2012)).
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Similarly, the Court rejects any argument by Defendant that litigation became
substantially probable simply because Plaintiff retained counsel in September 2022, or
sometime prior. “It is neither unusual nor indicative of an intent to pursue litigation that
Plaintiff retained counsel to handle his insurance claims[.]” Menapace, 2020 WL 6119962,
at *16 (citing Church Mut. Ins. Co. v. Coutu, No. 17-cv-00209-RM-NYW, 2018 WL
2388555, at *5 (D. Colo. May 25, 2018) (finding that “[t]he mere retention of counsel is . .
. insufficient to establish a reasonable anticipation of litigation[.]”)).
Next, the Court considers whether a substantial probability of litigation arose on
May 29, 2024, when Plaintiff’s counsel wrote to Defendant’s counsel expressing concern
about 	delays 	in 	scheduling 	Defendant-requested 	medical 	examinations, 	given 	the
approaching November 2024 statute of limitations deadline on Plaintiff’s underinsured
motorist claim. See R. Ziev-I. Mitchell Letter (dated May 29, 2024), NWM_4948-4949;
see also R. Ziev-I. Mitchell Letter (dated Oct. 1, 2024), NWM_4893 (articulating a
November 14, 2022 statute of limitations deadline). Mere discussion of the statute of
limitations does not make litigation substantially probable. The records reflect that more
than four months later, on October 1, 2024, Plaintiff did not want to commence litigation.
See R. Ziev-I. Mitchell Letter (dated Oct. 1, 2024), NWM_4893 (stating, Plaintiff did not
“want[] to be forced into a position where he has to file a lawsuit in order to preserve the
statute of limitations.”). Instead, Plaintiff’s counsel proposed to Defendant’s counsel that
the parties “consider a tolling agreement so that [Plaintiff] is not forced into litigation.” Id.
Even the mention of a tolling agreement does not make litigation substantially probable.
See Lakeshore Vill. Homeowners Ass’n v. Gen Star Indem. Co., 22-cv-02046-GPG-SBP,
2024 WL 5125246, at *12 (D. Colo. Dec. 16, 2024) (finding that “HOA’s requests for a
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tolling agreement did not make litigation foreseeable” because a tolling agreement serves
“to extend the statute of limitations and provide additional time before a party must file
suit.”). The Court thus finds that substantial probability of litigation did not exist on May
29, 2024, or even on October 1, 2024.
However, the Court finds that litigation became substantially probable a few weeks
later, on October 23, 2024, when Defendant denied Plaintiff’s claim. See Nationwide-R.
Ziev Letter (dated Oct. 23, 2024) (denying claim), NWM_4929-30; see Menapace, 2020
WL 6119962, at *17-19 (declining to apply work product protection to documents created
prior to a denial-of-coverage letter) (citing Nat’l Farmers Union Prop. & Cas. Co. v. Dist.
Ct., 718 P.2d 1044, 1048 (Colo. 1986) (concluding that litigation arose “after [the insurer]
denied the claim”) (emphasis in original); Century Sur. Co. v. Smith, No. 14-cv-00947-
RM-MJW, 2014 WL 7666061, at *6 (D. Colo. Jan. 21, 2014) (“Ordinarily, the date a claim
is denied is the most obvious point at which litigation becomes imminent.”)). Therefore,
the Court concludes that claim file documents prepared before October 23, 2024, were
not prepared in anticipation of litigation or for trial. See Outback Steakhouse, 251 F.R.D.
at 610. Accordingly, claim file documents that predate October 23, 2024, may not be
withheld on work product grounds.
B. 	Has 	Defendant 	appropriately 	redacted 	certain 	pre-October 	23, 	2024
documents?
Next, 	the 	Court 	considers 	whether 	Defendant 	has 	appropriately 	redacted
information to protect attorney-client privileged communications or work product or on
relevance grounds.
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1. 	Mark Van Dieren/Dyan McDowell Claim File Entries, NWM_303-04, 856-
57
The pages Bates stamped NWM_303-04 and 856-57 are claims file entries dated
October 3, 2024, through October 12, 2024, apparently made by the claim adjuster and
claim manager. The entries concern claim-adjusting status and strategy. These pages
also include an email between the claim adjuster and Ian Mitchell, an attorney retained to
assist with the fact investigation and other claim adjusting activities. See I. Mitchell-A.
Dubberstein Email (dated Oct. 1, 2024), NWM_4884 (stating that Attorney Mitchell’s “firm
has been retained to assist Nationwide with their contractual rights including fact
gathering, scheduling exams, and coordination of requests for expert reports and
opinions.”). The email does not contain legal advice or a request for legal advice. The
email, rather, consists of updates regarding the status of the investigation, asks Attorney
Mitchell 	to 	obtain 	additional 	information 	from 	Plaintiff’s 	counsel 	to 	facilitate 	claim
adjusting, and articulates an internal approval process for any research that may be
conducted on the statute of limitations issue.
Defendant has redacted these pages on grounds of attorney-client privilege, work
product, and relevance. Def. Suppl. Privilege Log at 1-2. The Court finds that none of
these bases justify redactions. First, these claim entries do not seek or contain legal
advice. Second, these claim entries predate the October 23, 2024 denial letter. Third, the
Court finds that this claim-handling communication has at least some relevance to the
asserted claims and defenses in this case. Plaintiff has lodged a breach of contract claim,
which challenges Defendant’s “ultimate decision whether a policy covers an alleged injury
or damage[.]” Lakeshore Vill., 2024 WL 5125246, at *8. Plaintiff has also lodged a bad
faith claim which “places at issue how the insurer arrived at its decision.” Id. Finally,
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Plaintiff has lodged a statutory claim for unreasonable delay or denial of benefits in
violation of Colo. Rev. Stat. §§ 10-3-1115(1)(1)(A) and 10-3-1116(1). For that claim,
Plaintiff must establish that “the delay or denial was without a reasonable basis.” Byron-
Amen v. State Farm Auto. Ins. Co., No. 21-cv-02364-NYW, 2022 WL 1567563, at *4 (D.
Colo. May 18, 2022) (citation omitted). Given the broad construction of relevance in the
discovery context, these claim file entries are discoverable. Therefore, Defendant is
ordered to produce NWM_303, 304, 856, and 857 without redactions.
2. 	Dyan McDowell Entries, NWM_305-08, 858-61
The pages Bates stamped NWM_305-08 and NWM_858-61 are claims file entries
from October 3, 2024, and thus predate the denial letter and are therefore not work
product. The bottom of NWM_305, 858 through the top of NWM_308, 861 contains an
email from Attorney Mitchell to the claim adjuster. Defendant has redacted these pages
on grounds of attorney-client privilege, work product, and relevance. Def. Suppl. Privilege
Log at 2. The first redacted paragraph does not contain legal advice; rather, it pertains to
information obtained in the claim adjusting-related investigation. The Court finds that this
claim-handling communication has at least some relevance to the asserted claims and
defenses in this case. Therefore, Defendant is ordered to unredact this paragraph.
The next redacted paragraph, from the bottom of NWM_305 through the top of
NWM_306 and on NWM_859, consists of legal advice regarding the statute of limitations
issue. Even though this communication arises in the claim adjusting phase, it is an
attorney-client privileged communication. See Menapace, 2020 WL 6119962, at *7
(reasoning, “communications related to the actual provision of legal advice are still
protected by the attorney-client privilege,” even if the attorney was retained to perform
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claim adjusting activities); cf. Olsen v. Owners Ins. Co., No. 18-cv-1665-RM-NYW, 2019
WL 2502201, at *1, *5-7 (D. Colo. June 17, 2019) (finding that attorney-client privilege did
not apply to claim file communications between adjuster and attorney where the
communications did not contain legal advice); Plaza Ins. Co. v. Lester, No. 14-cv-01162-
LTB-CBS, 2015 WL 3528336, at *5-6 (D. Colo. June 4, 2015) (parsing out legal advice
from communications directing law firm to take certain investigative steps and that
otherwise lack 	legal content). 	Therefore, the paragraph starting at the bottom 	of
NWM_305 through the top of NWM_306 and on NWM_859 is appropriately redacted.
The remainder of the redacted claim file notes on NWM_306, 859 through the top
of NWM_308, 861 do not contain legal advice, even though they are part of a
communication between Attorney Mitchell and the claim adjuster. The redactions, rather,
concern updates from Attorney Mitchell regarding developments in the investigation,
including conferrals with an expert regarding Plaintiff’s expert’s analyses. The redactions
also concern Attorney Mitchell’s recommended next steps in the investigation. Because
these notes do not contain legal advice, Defendant is ordered to unredact those
paragraphs.
Finally, the last two redacted paragraphs on NWM_308 and the last redacted
paragraph on NWM_861 are from an email from Attorney Mitchell to the claim adjuster.
The second-to-last redacted paragraph on NWM_308 explains the nature of an attached
communication Attorney Mitchell received from Plaintiff’s counsel. That paragraph does
not contain legal advice. Therefore, Defendant is ordered to unredact that paragraph.
In contrast, the last redacted paragraph on NWM_308 and the last redacted
paragraph on NWM_861 are appropriately redacted. Those paragraphs contain Attorney
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Mitchell’s explanation as to why, based on his understanding of the law, he finds Plaintiff
counsel’s assertions about the statute of limitations puzzling, and he articulates a need
for legal research. Because the last redacted paragraph on NWM_308, 861 contain
attorney-client privileged information, see Trujillo, 144 P.3d at 542, the Court concludes
that it is appropriately redacted.
3. 	Dyan McDowell Entries, NWM_313-14, 866-67
The 	pages 	Bates 	stamped 	NWM_313-14 	and 	NWM_866-67 	consist 	of 	a
September 4, 2024 claim file entry by the claim adjuster. Defendant has redacted these
pages on grounds of attorney-client privilege, work product, and relevance. Def. Suppl.
Privilege Log at 3. But the entry is not a privileged communication; rather, it is an update
on the claim adjusting progress and it includes expected due dates for outside expert
reports. Additionally, the entry predates the denial letter and is therefore not work product.
Finally, the entry is relevant to the asserted claims and defenses in this case. Therefore,
Defendant is ordered to unredact NWM_313-14 and NWM_866-67.
4. 	Mark Van Dieren & Sladjana Maalouf Entries, NWM_339-40, 892-93
The top of pages Bates stamped NWM_339 and NWM_892 consist of a February
28, 2024 entry from the claim manager about a strategy discussion with Attorney Mitchell
regarding the claim status and next steps. Defendant has redacted this entry on grounds
of attorney-client privilege, work product, and relevance. Def. Suppl. Privilege Log at 3.
First, the entry does not contain any attorney-client privileged information; rather, it
concerns a meeting the claim manager had with the attorney retained to assist with claim
adjusting. Second, though the entry notes Plaintiff’s counsel’s threats of litigation if the
policy limits are not paid within 30 days, the entry predates the October 23, 2024 denial
letter by nearly eight months. Therefore, the entry does not contain work product. Finally,
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the entry is relevant to the asserted claims and defenses in this case. Therefore,
Defendant is ordered to unredact the first redacted paragraph on NWM_339 and
NWM_892.
The remaining redactions on NWM_339 and NWM_892 are of a February 27, 2024
entry by a claim adjuster regarding an email the adjuster sent to Attorney Mitchell with a
request to discuss a claim resolution strategy. Defendant has redacted this entry on
grounds of attorney-client privilege, work product, and relevance. Def. Suppl. Privilege
Log at 3. The entry is not privileged because it does not concern legal advice; rather, it
concerns claims adjusting activities. The entry is not work product because it predates
the October 23, 2024 denial letter. Finally, this entry is relevant to the asserted claims
and defenses in this case. Therefore, Defendant is ordered to unredact the remainder of
NWM_339 and NWM_892.
The redactions on NWM_340 and NWM_893 are of a couple of lines in another
claim adjuster entry from February 27, 2024. The lines contain information regarding
Defendant Nationwide’s reasons for appointing new claim adjusting counsel. In its
privilege log, Defendant simply asserts the privilege applies because the communication
is with an attorney (retained to adjust the claim) “regarding [claim adjustment] strategy
including [attorney] reassignment.” Def. Suppl. Privilege Log at 3.
The Court finds that Defendant has not met its burden to establish why this
information is privileged. See Menapace, 2020 WL 6119962, at *4 (noting that the party
asserting the privilege bears the burden of establishing that the privilege applies to a
particular 	communication); 	TTI Consumer Power 	Tools 	Inc. 	v. Engineered Plastic
Components Inc., No. 8:22-cv-04085-JDA, 2024 WL 4274957, at *4 (D.S.C. Sept. 24,
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2024) (denying request to block inquiry into a former employee’s reasons for retaining
separate 	counsel 	instead 	of 	using 	former 	employer’s 	counsel 	in 	the 	absence 	of
explanation as to why “reasons for obtaining separate counsel would necessarily
implicate the disclosure of privileged communications.”); U.S. ex rel. Fisher v. Network
Software Assocs., 217 F.R.D. 240, 245 (D.D.C. 2003) (noting that “the reason an attorney
is retained may not be privileged”); cf. Magida ex rel. Vulcan Detinning Co. v. Cont’l Can
Co., 12 F.R.D. 74, 77-78 (S.D.N.Y. 1951) (noting uniformity of case law “against allowing
any privilege as to the fact of retainer,” but expressing an unwillingness to “extend the
principle to the actual terms of that retainer.”); but see Riley v. Union Pac. R.R. Co., No.
CIV-09-155-KEW, 2010 WL 1946286, at *1 (E.D. Okla. May 13, 2010) (noting that “the
reason for retention could touch upon privileged communications”) (emphasis added).
Therefore, Defendant is ordered to unredact NWM_340 and NWM_893.
5. 	Claim File Entries and Emails, NWM_343, 357-58, 361-63, 365, 896, 910-
911, 914-16, 918, 4787-4808, 4847, 4894-95, 4897, 4915-16, 5190, 5269-
70, 5291-92, 5351-53, 5518-19, 5533-36, 5568-71, 5583, 5658-60, 5682,
5717, 5732-33, 5745-46, 5768-70, 5796-99, 5805-08, 5962, 5965-66, 5973,
6096-99, 6107, 6115-16, 6532-34, 6545-47, 6608-09, 6620, 6653-54, 6674,
6717-20, 6732, 6733, 9446-48
Plaintiff’s Amended Discovery Dispute Chart identifies the following pages, which
purportedly contain improper redactions: NWM_343, 357-58, 361-63, 365, 896, 910-911,
914-16, 918, 4787-4808, 4847, 4894-95, 4897, 4915-16, 5190, 5269-70, 5291-92, 5351-
53, 5518-19, 5533-36, 5568-71, 5583, 5658-60, 5682, 5717, 5732-33, 5745-46, 5768-70,
5796-99, 5805-08, 5962, 5965-66, 5973, 6096-99, 6107, 6115-16, 6532-34, 6545-47,
6608-09, 6620, 6653-54, 6674, 6717-20, 6732, 6733, 9446-48. See Am. Disc. Dispute
Chart at 6-7, 11-16. However, the binder of in camera review documents does not contain
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these pages. Therefore, the parties are ordered to confer to resolve their dispute in a
manner that is consistent with the Court’s rulings in this Order.
6. 	Entries between Attorney Mitchell and Dyan McDowell, NWM_4874-76,
4919-21, 5313-15, 5357-38, 5625-28, 5673-74, 5686-88
The bottom of page Bates stamped NWM_4874 through page NWM_4875,
NWM_5357-38, NWM_5625-26, NWM_5673-74, NWM_5686-87 contain an email thread
between Attorney Mitchell and a claim adjuster. The email chain is dated September 4,
2024, and concerns the claim-adjusting status, including dates by which certain expert
reports will be complete. Defendant has redacted these pages on grounds of attorney-
client privilege, work product, and relevance. Def. Suppl. Privilege Log at 6. First, the
attorney-client privilege does not apply because the entry does not contain legal advice
or a request for legal advice; rather, it solely concerns claims adjusting activities. Second,
the emails are not work product because they predate the October 23, 2024 denial letter.
Third, the emails are relevant to the claims and defenses. Therefore, Defendant is
ordered to unredact NWM_4874-75, NWM_5357-38, NWM_5625-26, NWM_5673-74,
and NWM_5686-87.
Pages Bates stamped NWM_4876, NWM_4921, and NWM_5315 contain a
September 4, 2024 email from Attorney Mitchell to a claim adjuster. The email concerns
the scheduling of a medical examination and communications with Plaintiff’s counsel. For
the same reasons articulated above, this email should not have been redacted on
grounds of attorney-client privilege, work product, and relevance. Therefore, Defendant
is ordered to unredact NWM_4876, NWM_4921, and NWM_5315.
Pages Bates stamped NWM_4919 and NWM_5313 contain a September 4, 2024
email from Attorney Mitchell to a claim adjuster. The email concerns claim adjusting status
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and strategy. For the same reasons articulated above, this email should not have been
redacted on grounds of attorney-client privilege, work product, and relevance. Therefore,
Defendant is ordered to unredact NWM_4919 and NWM_5313.
Pages Bates stamped NWM_4920 and NWM_5314 contain a September 4, 2024
email from a claim adjuster to Attorney Mitchell. The email seeks clarification regarding
the claim adjusting status. For the same reasons articulated above, this email should not
have been redacted on grounds of attorney-client privilege, work product, and relevance.
Therefore, Defendant is ordered to unredact NWM_4920 and NWM_5314.
7. 	Email from Mark Van Dieren to Attorney Mitchell, NWM_5705
Page Bates stamped NWM_5705 contains an October 18, 2024 email from the
claim manager to Attorney Mitchell. It references an attached draft response to Plaintiff’s
insurance claim and seeks input on the draft. Defendant redacted the portion of the email
that seeks input on the draft on grounds of attorney-client privilege, work product, and
relevance. See Def. Suppl. Privilege Log at 9. Defendant describes the content as,
“[c]ommunication with Attorney Ian Mitchell regarding draft response in relation to
analysis of underlying settlement and statute of limitations.” Id. In the Amended Discovery
Dispute Chart, Plaintiff argues that the email should be unredacted because “Defendant’s
attorneys were doing the work of claim adjusters and their records and documentation
are discoverable.” Am. Disc. Dispute Chart at 17. Plaintiff also argues that the email was
not prepared in anticipation of litigation. Id.
“The mere fact that an attorney is involved in a communication or drafting does not
automatically render that communication or document subject to the attorney-client
privilege or work-product doctrine.” Lakeshore Vill., 2024 WL 5125246, at *8 (citations
omitted). Additionally, “general topics of a conversation between an attorney and his or
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client are not protected.” Id. at *10. However, specific communications in which legal
advice is sought or provided are subject to attorney-client privilege. See Madera, 112
P.3d at 690. Here, the redactions are of the claim manager’s specific requests for Attorney
Mitchell’s advice on the draft letter and the potential ramifications of the letter’s wording.
Therefore, even though the email is relevant to the asserted claims and defenses, the
email is appropriately redacted on grounds of attorney-client privilege.
The Court, however, disagrees that the redactions are protected work product. The
email was not prepared in anticipation of litigation or for trial; rather, the email was
prepared as part of the final claim adjusting phase, prior to the denial letter’s issuance.
Therefore, this basis for the redactions is rejected.
8. 	Email from Sladjana Maalouf to Attorney Mitchell, NWM_5711-12, 6603
The bottom of page Bates stamped NWM_5711 through the top of NWM_5712
and NWM_6603 consist of a February 27, 2024 email from a claim adjuster to Attorney
Mitchell, with other individuals from Attorney Mitchell’s law firm and from Nationwide
copied. The email’s subject line is “Pre-Lit UIM claim 702480-GJ for LEE A MOORER.”
Defendant has redacted this email on grounds of attorney client privilege, work product,
and relevance. Def. Suppl. Privilege Log at 9. The privilege log describes the email as a
“[c]ommunication . . . regarding analysis and strategy of potential resolution in relation to
Plaintiff’s demand.” Id.
The attorney-client privilege does not apply to this email because it does not
contain legal advice or a request for legal advice; rather, it solely concerns claim adjusting.
Additionally, the email predates the October 23, 2024 denial letter by nearly eight months;
therefore, the work product doctrine does not apply. Finally, this email is relevant to the
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asserted claims and defenses. Therefore, Therefore, Defendant is ordered to unredact
NWM_5711, NWM_5712, and NWM_6603.
IV. 	Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Oral Motion to Compel Production of
Unredacted Documents from Defendant Nationwide’s Claim File is GRANTED in part
and DENIED in part.
IT 	IS 	FURTHER 	ORDERED 	that 	Defendant 	shall 	produce 	documents 	in
unredacted form consistent with this Order.
IT IS FURTHER ORDERED that Defendant shall produce the above-listed
unredacted documents by December 12, 2025.
IT IS FURTHER ORDERED that the parties shall meaningfully confer to resolve
their disputes about the redacted documents that were not provided to the Court for in
camera review but are identified in Section III(B)(5) of this Order and in Plaintiff’s
Amended Discovery Dispute Chart. The conferral shall occur by December 12, 2025.
Dated: November 28, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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