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American Interstate Insurance Co. v. Kurth6/7/2004
ORDER ON PENDING MOTIONS
The motions presently before the Court are American Interstate's motion for a continuance and cross-motions to compel discovery. Trial is scheduled for the week of June 14, 2004. The pretrial conference is scheduled for today, June 7, 2004. The motions at issue were submitted for decision only this last week.
Discussion
American Interstate is the petitioner in this matter and seeks an order allowing it to suspend benefits on account of the claimant's failure to submit to an Independent Medical Examination (IME). That is the sole issue it presents.
Respondent (Kurth) objects to an IME, alleging that he has undergone multiple IMEs and enough is enough. In addition, he has filed a counter petition in which he seeks payment for his attendance at a pain clinic, reinstatement of temporary total disability benefits, and rehabilitation benefits.
I. Mr. Kurth's Motion to Compel
I first deal with Mr. Kurth's motion to compel discovery. The motion is inarticulate and difficult to parse, however, it appears to be asking the Court to compel production of documents requested in Respondent's Second Request for Production of Documents. The requested documents are ones authored by the claims adjuster and by Nancy Polsin, RN, the file sent to Mary Jane Barrett, a referral letter to Rick Clark (which American Interstate says does not exist), financial records for medical and rehabilitation costs paid by American Interstate, and files pertaining to private investigators who investigated Kurth. American Interstate's responses to the requests for production indicate that it has complied with all of the requests, insofar as it could discern what was requested, except as to files pertaining to private investigators. It indicates it does not intend to offer any surveillance or investigative material developed by a private investigator and objects to the production of those materials on grounds of attorney-work product and attorney-client privilege. It also alleges, somewhat perplexingly, that production of such material could pose a threat to unspecified individuals and constitute contempt of court.
Since it appears that American Interstate has complied with all requests, as best it could, except for the private investigative files, I deal only with the latter. As an initial matter, the objection based on contempt of court and danger to unspecified individuals is so uninformative as to be useless to the Court in evaluating the objection. As to the attorney-client privilege, it is unlikely that it covers all investigative materials; surveillance tapes may well come under the attorney work-product rule but are not attorney-client communications. As to attorney work product, the privilege is not absolute:
Ordinary work product is discoverable to the extent that it is not privileged and is "relevant to the subject matter involved in the pending action." Rule 26(b)(1), M.R.Civ.P. However, a party can discover ordinary work product "prepared in anticipation of litigation or for trial 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 without undue hardship to obtain the substantial equivalent of the materials by other means." Rule 26(b)(3), M.R.Civ.P.
"At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case." Unite
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