Response to Plaintiff's Motion to Compel.pdf

8/14/2019 Response to Plaintiff's Motion to Compel.pdf

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IN THE CIRCUIT COURT OF THESEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR

BROWARD COUNTY, FLORIDA

STEVEN POULOS,

Plaintiff,

vs. CASE NO.: 11-23833

ALLSTATE INSURANCE COMPANY,RMK INSURANCE GROUP, INC. and

JOSE KUDJA, individually, and, REBECCAKUDJA, individually

Defendants.

/

DEFENDANT, ALLSTATE INSURANCE COMPANY’S

RESPONSE TO PLAINTIFF’S MOTION TO COMPEL PROPER

RESPONSES TO PLAINTIFF’S SECOND REQUEST TO PRODUCE

Defendant, Allstate Insurance Company (“Allstate), hereby responds to Plaintiff’s

Motion to Compel Proper Responses to Plaintiff’s Second Request to Produce, dated July 12,

2013, and states as follows:

I. FACTUAL BACKGROUND

1. On or about May 1, 2013, Allstate was served with Plaintiff’s Second Request to

Produce, which contains 40 requests.

2. Plaintiff’s requests are overbroad, vague, and susceptible to multiple

interpretations, and so counsel for Allstate spoke several times at length with counsel for

Plaintiff via telephone in an attempt to clarify and/or narrow the requests to determine exactly

what documents Plaintiff was seeking.



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3. After participating in those discussions with counsel for Plaintiff, counsel for

Allstate conducted multiple interviews with Allstate employees in an attempt to locate

documents which were responsive to Plaintiff’s clarified and/or narrowed requests.

4. Counsel for Allstate advised counsel for Plaintiff that it had identified some

responsive documents, but that due to the nature of the documents identified, Plaintiff would

have to enter into a confidentiality agreement with Allstate in order for the documents to be

produced.

5. Counsel for Allstate emailed a proposed confidentiality agreement to counsel for

Plaintiff on July 3, 2012.

6. On July 5, 2013, counsel for Allstate and counsel for Plaintiff spoke via telephone

and agreed that later that day Allstate would serve responses to requests 20 through 32 of

Plaintiff’s Second Request to Produce, and that it would not produce the initial responsive

documents it had identified until the confidentiality agreement had been executed. Counsel for

both parties further agreed that Allstate had additional time to respond to the remaining requests

and produce documents related to those requests.

7. Per the parties’ agreement, on July 5, 2013, Allstate served written responses to

requests 20 through 32 of Plaintiff’s Second Request to Produce. Allstate’s responses indicated

that documents bates numbered AIC0000001 – AIC000544 were responsive to Plaintiff’s

requests and would be produced once Plaintiff executed the confidentiality agreement.

8. In contradiction of the parties’ agreement and without warning, Plaintiff filed his

Motion to Compel Proper Responses to Plaintiff’s Second Request to Produce on July 12, 2013.



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9. Counsel for Plaintiff finally executed the confidentiality agreement on July 16,

2013. That same day, Allstate produced documents bates numbered AIC0000001 – AIC000544

to counsel for Plaintiff via Federal Express.

10. Plaintiff’s motion requests that the court determine that if Allstate did not file any

objections to the remaining requests by July 22, 2013, then the objections should be deemed

waived. However, counsel for Plaintiff extended that deadline to July 31, 2013.

11. On July 31, 2013, Allstate had still not collected all of the documents which were

responsive to the remaining requests. Therefore, in order to preserve objections, Allstate served

its Objections to Numbers 1 – 19 and 33 – 40 of Plaintiff’s Second Request to Produce on July

31, 2013.

12. On October 31, 2013, Allstate served supplemental responses to Plaintiff’s

Second Request to Produce. Documents bates numbered AIC000545 – AIC000682

accompanied Allstate’s supplemental response.

13. Allstate’s supplemental response provides additional details regarding its

objections to Plaintiff’s requests. However, Allstate writes further to provide support for its

attorney-client and work product objections to request number 19.

II. ARGUMENT

14. Privileged documents responsive to request number 19 are identified in Allstate’s

privilege log. These documents are privileged because they are investigative materials of

Allstate that were prepared in anticipation of litigation, or because they are privileged

communications between employees of Allstate and attorneys for Allstate.

15. Joe Cackowski, an Allstate compliance analyst, conducted a regional compliance

review for the RMK Insurance Group in which he analyzed information in Allstate’s system



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regarding the RMK Insurance Group’s policies and policyholders. At the time Mr. Cackowski

conducted the compliance review, he knew his findings could result in disciplinary action and/or

litigation against the RMK agency, its principals or staff. Since he anticipated that the

compliance review could lead to litigation, he maintained his complete investigation file,

including his summaries, as confidential.

16. Allstate’s Corporate Security department then opened an investigation into the

RMK Insurance Group after it received the regional compliance review regarding the RMK

agency. Corporate Security’s investigation was conducted at the direction of an attorney for

Allstate and pursuant to the attorney-client privilege.

17. The Corporate Security department knew that its investigation into the RMK

agency could result in disciplinary action (including termination of RMK’s Exclusive Agency

Agreement with Allstate) and litigation against the RMK agency, its principals, and staff.

18. Corporate Security’s findings were sent directly to an attorney for Allstate, and

advice regarding what actions should be taken against the RMK Insurance Group was given by

an attorney for Allstate. Corporate Security’s investigation files related to the RMK Insurance

Group have been maintained as confidential.

19. Allstate’s investigative materials, which were prepared in anticipation of

litigation, constitute work product and are not subject to discovery. See Federal Express Corp.

v. Cantway, 778 So. 2d 1052, 1053 (Fla. 4th DCA 2001) (“[I]nvestigative materials of a party,

when prepared in anticipation of litigation, constitute work product and are not subject to

discovery . . . .”); Publix Supermarkets, Inc. v. Johnson, 959 So. 2d 1274, 1275 (Fla. 4th DCA

2007) (same); Anchor Nat’l Financial Servs., Inc. v. Smeltz, 546 So. 2d 760, 760 (Fla. 2d DCA



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1989) (“Even preliminary investigative materials are privileged if compiled in response to some

event which foreseeably could be made the basis of a claim.”)

20. Further, Allstate’s investigative materials are privileged in this litigation even

though its employees anticipated litigation with the RMK agency, its principals, or staff, and not

with Plaintiff. See Publix Supermarkets, Inc. v. Johnson, 959 So. 2d 1274, 1275 (Fla. 4th DCA

2007) (past investigative materials prepared in anticipation of litigation with past shoplifters

retained work product status in present lawsuit against shoplifter); Toward v. Cooper , 634 So. 2d

760, 761 (Fla. 4h DCA 1994) (documents retained work product status even though prepared in

anticipation of litigation with a different party); DeBartolo-Aventura, Inc. v. Hernandez, 638 So.

2d 988, 990 fn.1 (Fla. 3d DCA 1994) (“[P]laintiff argued that the work product privilege was

available only for work product prepared in anticipation of this litigation, but is not available for

materials prepared in anticipation of other litigation. Rule 1.280 is not so limited.”) (emphasis in

original); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So. 2d 1087, 1089 (Fla. 1st

DCA 1981) (information obtained by hospital in its investigation of a fire was work product as to

initial wrongful death litigation and in subsequent litigation).

21. The rationale behind the work product doctrine is that a party should not be

entitled to prepare his or her case through the investigative work product of his adversary “where

the same or similar information is available through ordinary investigative techniques and

discovery procedures.” Intercontinental Properties, Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d

DCA 1997).

22. Plaintiff is not entitled to receive Allstate’s privileged work product materials

when he can use the ordinary tools of discovery to learn the facts for himself. See Id (opposing

party can learn facts by propounding interrogatories and taking depositions). Plaintiff has not



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sought any of the requested information by way of interrogatories, and no depositions have been

taken in this case.

WHEREFORE, Defendant, Allstate Insurance Company, respectfully requests that this

Court enter an Order denying Plaintiff’s Motion to Compel Proper Responses to Plaintiff’s

Second Request to Produce, sustaining Allstate’s objections to Plaintiff’s Second Request to

Produce, and for such other and further relief as this Court deems appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by e-mail to

Mark S. London, Esquire and Lisa J. London, Esquire at [email protected];

[email protected]; and [email protected], (Counsel for Plaintiff), and Sean L.

Collin and Philip M. Snyder at [email protected] and [email protected],

(Counsel for Defendants, RMK Insurance Group, Inc., n/k/a RMK Consulting Group, Jose Kudja

and Rebecca Kudja) this 31st day of October, 2013.



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s/ Brett M. Carey

LORI J. CALDWELLFlorida Bar No. 0268674

E-mail: [email protected] (primary)

E-mail: [email protected] [email protected] (secondary)BRETT M. CAREY

Florida Bar No. 0091355E-mail: [email protected] (primary)

E-mail: [email protected] [email protected] (secondary)

RUMBERGER, KIRK & CALDWELLA Professional Association

Lincoln Plaza, Suite 1400300 South Orange Avenue (32801)

Post Office Box 1873Orlando, Florida 32802-1873

Telephone: (407) 872-7300Telecopier: (407) 841-2133

Attorneys for Defendant, Allstate Insurance Company

Response to Plaintiff's Motion to Compel.pdf

Documents

Transcript of Response to Plaintiff's Motion to Compel.pdf