United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION & ORDER
Michael S. Nachmanoff United States Magistrate Judge
matter is before the Court on Plaintiff's Motion to
Compel Certain Categories of Documents from Defendant Chubb
National Insurance Company (Dkt. No. 58). Plaintiff asks that
the Court compel Defendant to produce documents and
information categorized as claim files, investigation files,
and related communications with former Defendants, SBR Law,
LLC and Cynthia Bernstiel. Defendant asserts that the
information and documents are protected under attorney-client
privilege and the work product doctrine. For the reasons that
follow, Plaintiff's Motion is denied.
November 16, 2015, Plaintiff Susan Rattner, a retired doctor,
lost her home in Great Falls, Virginia, and nearly all of her
belongings after a fire. Compl. ¶ 1 (Dkt. No. 1). On
February 1, 2017, Plaintiff filed a complaint against her
home insurance company, Defendant Chubb National Insurance
Company, and the law firm and attorney representing the
insurance company, SBR Law, LLC and Cynthia Bernstiel. Compl.
¶¶ 1, 12-14 (Dkt. No. 1). Plaintiff amended her
complaint on March 10, 2017. See Dkt. No. 26.
alleges that at the time of the fire, she was in compliance
with the conditions of her homeowner's insurance policy
issued by Defendant Chubb. Id. ¶ 2. Plaintiff
asserts that Defendant Chubb failed to conduct a reasonable
investigation into the loss. Id. ¶ 6. Instead,
Defendant Chubb allegedly contracted with SBR Law and Ms.
Bernstiel to conduct a “targeted investigation aimed at
manufacturing a basis on which to deny [Plaintiff's]
claim.” Id. Defendant Chubb insists that it
has denied Plaintiff's claim because “[t]here is
substantial evidence that Plaintiff had both motive and the
opportunity to burn down her home to obtain insurance
coverage.” Def.'s Mem. in Supp. 1 (Dkt. No. 47).
March 24, 2017, SBR Law and Ms. Bernstiel filed a Motion to
Dismiss, which the Court granted on April 24, 2017.
See Dkt. Nos. 38, 77. On April 14, 2017, Plaintiff
filed the instant Motion to Compel various categories of
information and documents from Defendant Chubb. See
Dkt. Nos. 58, 60. The Court heard oral argument on April 21,
2017, and again on April 28, 2017, regarding the Motion to
Compel, which was taken under advisement with respect to
disputes concerning attorney-client privilege and work
product doctrine. See Dkt. Nos. 75, 76, 83, 85.
After the Court ordered the parties to meet and confer in an
effort to narrow the privilege issues, the parties did so,
and the remaining issues involve 79 items on Defendant's
privilege log. See Dkt. No. 86-1. Plaintiff disputed
the sufficiency of Defendant Chubb's privilege log.
See Dkt. No. 80. On April 28, 2017, the Court
ordered Defendant Chubb to submit a supplemental privilege
log, but this did not resolve the privilege issues.
See Dkt. No. 85. The Court further ordered Plaintiff
to identify from Defendant Chubb's supplemental privilege
log ten sample documents, which Defendant Chubb was ordered
to submit for in camera review. See Dkt.
Chubb retained SBR Law, LLC and Ms. Bernstiel to investigate
wrongdoing regarding the cause of the fire. Plaintiff
concedes, as it must, that Defendant Chubb would not be
required to disclose information and documents containing Ms.
Bernstiel's legal advice or opinion in her role as
Defendant's lawyer. See Pl.'s Supplemental
Br. 3-4 (Dkt. No. 80). However, Plaintiff asserts that
Defendant Chubb must disclose Ms. Bernstiel's impressions
and opinions “in her investigatory role” because
that information is “exactly the same as what a
non-lawyer insurance adjuster” would develop during a
claim investigation. Id. Plaintiff states that
“Chubb should not be permitted to shield this factual
information from discovery simply because it is the work
product or opinion of a lawyer.” Id.
argument is contrary to law. Information and communications
with an attorney retained to conduct an investigation may
still be privileged when the investigation is “related
to the rendition of legal services.” In re
Allen, 106 F.3d 582, 603 (4th Cir. 1997) (citation and
internal quotation marks omitted). A lawyer is ethically
obligated to be fully informed of the facts of a case in
order to render legal advice. Upjohn Co. v. United
States, 449 U.S. 383, 391 (1981) (“The first step
in the resolution of any legal problem is ascertaining the
factual background and sifting through the facts with an eye
to the legally relevant.”). For that reason, facts
learned by an attorney in the course of an investigation can
be privileged. See In re Allen, 106 F.3d at 603
(noting that in Upjohn Co., the Supreme Court made
“clear that fact finding which pertains to legal advice
counts as professional legal services”).
in camera review of the ten sample documents, the
Court finds that Defendant Chubb properly withheld the
documents on the basis of attorney-client privilege and the
work product doctrine because Ms. Bernstiel was retained to
conduct an investigation using her legal expertise. See
In re Allen, 106 F.3d at 603 (“Accordingly, we
must reject the legal theory espoused by district court that
the attorney-client privilege does not apply here, simply
because Allen's assigned duties were investigative in