The opinion of the court was delivered by: Guyton
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment. [Doc. 11]. Presently before the Court are the following pretrial motions filed by the parties: Plaintiff's Motion to Compel Production of Documents in Response to Plaintiff's First Request to Produce [Doc. 22]; Defendant's Motion to Quash Subpoena Duces Tecum [Doc. 27]; Plaintiff's Motion to Exclude and for Sanction and Disqualification for Ex Parte Communication with Plaintiff's Treating Physician [Doc. 28]; and Plaintiff's Motion for Leave to Amend Brief in Support of Motion to Compel [Doc. 30].
In this case, the plaintiff Clay Massi alleges that a Walgreen's pharmacist wrongfully filled his prescription for Ritalin with a more potent drug, Adderall. According to the Complaint [Doc. 3], a Walgreen pharmacist subsequently contacted the plaintiff and advised him of the mistake. The plaintiff then contacted his physician, Dr. Cook, for an emergency appointment. Dr. Cook contacted Walgreen to seek testing and treatment for the plaintiff and was told to contact Walgreen's claims management company, Sedgwick Claims Management Services, Inc. ("Sedgwick") for authorization of payment for the testing and treatment. The plaintiff claims that Sedgwick, however, refused to authorize or provide the costs of plaintiff's evaluation and treatment.
The plaintiff alleges that he suffered numerous injuries as a result of Walgreen's negligent administration of his prescription, including experiencing a stroke. The plaintiff further alleges that both Walgreen and Sedgwick, as an agent of Walgreen, had a duty to render aid to the plaintiff by providing medical care, testing, and treatment, and that Walgreen's refusal to render aid to the plaintiff constitutes outrageous conduct. The plaintiff seeks an award of compensatory and punitive damages for his injuries. [Doc. 3].
I. Plaintiff's Motion to Compel
The plaintiff moves the Court for an Order compelling the defendant to provide supplemental responses to plaintiff's Request for Production of Documents, which was served on June 1, 2006. [Doc. 22]. Specifically, the plaintiff challenges the defendant's assertion of various objections and privileges. The defendant opposes the plaintiff's motion, arguing that its responses to the plaintiff's discovery requests were adequate. [Docs. 25, 26]. The Court will address each of the plaintiff's objections to the defendant's discovery requests in turn.*fn1
The plaintiff first objects to the defendant's assertion of work product protection to the requests for Sedgwick files regarding the claim and denial of medical care to the plaintiff.
Specifically, the plaintiff objects to the assertion of work product protection with respect to six claim log entries, dated December 14, 2004 to February 23, 2005, identified in the defendant's privilege log. According to the defendant's privilege log, the December 14, 2004 Sedgwick claim log entry discusses "opening claim file[,] setting initial reserves and information that will be needed to assess claim and conversations with employees with Walgreens regarding the incident." The next claim log entry, which was made on December 17, 2004, is in reference to Sedgwick's investigation and information gathered regarding the plaintiff's claim. The next three claim log entries from January, 2005 relate to conversations between Sedgwick employees and Walgreen's pharmacist Davonna Foley, as well as to the change in reserves on the claim. The final claim log entry at issue, dated February 23, 2005, references a phone call between Sedgwick and pharmacist Davonna Foley [Doc. 30 Ex. B: Defendant's Privilege Log at 3].
The plaintiff argues that these files entries are relevant to the issues of liability in this case and further, because these files were made by a claims adjuster prior to the institution of litigation, they are not protected by the work product privilege. The plaintiff further argues that even if these files constitute work product, the plaintiff has a manifest need for these documents and that the information cannot be obtained by any less burdensome means.
The defendant argues that these claim files constitute work product because they were prepared in anticipation of litigation. In support of its argument, the defendant relies upon the affidavit of Christina Brann. In her affidavit, Brann states as follows:
2. Sedgwick CMS is the third party administrator of claims made against Walgreen Co. Sedgwick CMS has been retained by Walgreen Co. to investigate claims that are made by customers of Walgreen Co. or claims made by employees of Walgreen Co. for workers' compensation benefits. Sedgwick CMS is responsible for investigating, adjusting claims and monitoring claims that result in suit. Sedgwick CMS does not initiate an investigation until Sedgwick CMS is notified that an incident could result in a claim against Walgreen Co. . . . Sedgwick CMS provides services to Walgreen Co. only after an incident has occurred that could result in a claim or litigation against Walgreen Co. . . .
3. I am the claims representative of Sedgwick CMS who was assigned to the claim of Clay Massi which is the subject of the above-styled suit. It was my duty to investigate and determine whether the claim would be attempted to be settled, and after suit was filed, it is my duty to monitor the present suit of Clay Massi against Walgreen Co. All of the records that I have made were made only after Sedgwick CMS received a telephone call from Davonna Foley, a pharmacist in the employ of Walgreen Co. in Knoxville, Tennessee.
Ms. Foley called Sedgwick CMS on December 13, 2004 and reported that a patient, Clay Massi, had apparently received the wrong medication and reported that Mr. Massi claimed to have had adverse consequences from ingesting the incorrect medication. Based upon this initial report of a claim against Walgreen Co., I began an investigation to determine the facts of the claim, to decide how or if the claim should be adjusted or settled, and since suit has been filed, to monitor all development with the suit. All of my actions were done in anticipation of litigation. [Doc. 26 Ex. A: Affidavit of Christina Brann] (emphasis added). The defendant further argues that the plaintiff has not attempted to make a showing of substantial need for the materials or that the plaintiff is unable to obtain the information by other means.
The work product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides, in pertinent part, as follows:
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable to without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.
As the Supreme Court explained in Hickman v. Taylor, the point of the work product doctrine is that "discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary." 329 U.S. 495, 516, 67 S.Ct. 385, 396, 91 L.Ed. 451 (1947) (Jackson, J. concurring)
When a claim of work product is made, the party seeking discovery must first demonstrate that the material sought is relevant to the subject matter and not privileged pursuant to Rule 26(b)(1). Toledo Edison Co. v. G A Technologies, Inc., 847 F.2d 335, 339 (6th Cir. 1988). If the court determines that the material sought is relevant and not privileged, the burden shifts to the objecting party to demonstrate that the material was "prepared in anticipation of litigation or for trial" by or for that party or that party's representative. Id. If the court finds that the material was prepared in anticipation of litigation or for trial, the burden shifts back to the party requesting the material to demonstrate (1) a "substantial need" for the material for the preparation of the party's case and (2) that the party is unable without "undue hardship" to obtain the substantial equivalent of the material through other means. Id. at 339-40. Even if the requesting party shows substantial need and undue hardship, the court may not permit discovery of the attorney's "mental impressions, conclusions, opinions, or legal theories." Id. at 340. With respect to this latter issue, the objecting party has the burden of demonstrating "that the nature of the materials are mental impressions, conclusions, opinions or legal theories of an attorney or representative." Id.
The defendant does not appear to challenge the relevancy of the requested documents or otherwise claim that these documents are subject to any sort of privilege. Accordingly, the next step in the Court's analysis is to determine whether the defendant has ...