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Adels v. Cigna Insurance Co.

Court of Workers Compensation of Montana

January 6, 1994

CRAIG A. ADELS, Petitioner,
v.
CIGNA INSURANCE COMPANY, Respondent/Insurer for WEN DON CORPORATION, Employer.

          ORDER COMPELLING DISCOVERY

          Mike McCarter Judge

         The petitioner has filed a motion to compel seeking further identification and an in camera inspection of documents which respondent has refused to produce. The motion arises on account of respondent's answers to two requests for production propounded by petitioner. The first request asked respondent to produce its claim file. Respondent produced the file except for those documents which it asserted "are protected by the attorney/client privilege and/or work product privilege." The second request asked petitioner to produce "the results of any investigation of the activities of the Claimant conducted by any person or entity at the request of, or on behalf of, Defendant." The respondent objected to this request in its entirety, citing both the work product rule and the attorney-client privilege. The complete text of the requests and the responses is set out in the margin.[1]

         The current Court rules provide a specific procedure for objections to the production of a party's file. ARM 24.5.324(3) provides:

(3) If the request is for production of the file of a party and objection is made to such production, the objection will be ruled on only after an in camera inspection of such file upon the following conditions:
(a)counsel for the objecting party shall number each document in the file;
(b)counsel for the objecting party shall identify all documents he will concede are not privileged and further classify them on the basis of whether they are relevant or irrelevant, and if objected to on that basis;
(c)counsel for the objecting party shall classify all the remaining documents on the basis of whether each is privileged under the attorney-client privilege, the work-product rule, or both;
(d) counsel for the objecting party shall support his classification of the documents he asserts are privileged with special emphasis on why material purportedly within the ordinary, as opposed to opinion, work-product rule is either;
(i) not substantially needed by the opposing party; or
(ii) if substantially needed by the opposing party, is material he can obtain without undue hardship by other means.

         The rule does not specify whether the party seeking production must move to compel after an objection is raised. Under the Montana Rules of Civil Procedure, court review is not automatic. A party seeking a document to which an objection has been interposed must move to compel. Rule 34(b) provides in relevant part:

. . . The response [to a request for production] shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. [Emphasis added.]

         Rule 37 (a), Mont.R.Civ.P., authorizes a motion to compel production, providing in relevant part:

(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order ...

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