Motion to Compel Adjuster Log Notes

MOTION TO COMPEL ADJUSTER LOG NOTES

STATE OF ________________

IN THE _________ COURT FOR THE COUNTY OF ______________

PLAINTIFF Case No. _____________

Plaintiff,

v.

DEFENDANT INSURANCE ASSOCIATION,

Defendant.

MOTION TO COMPEL ADJUSTER LOG NOTES

NOW COMES Plaintiff, by and through his attorneys, the Law Offices of Michael J. Morse, P.C. and for their Motion to Compel Adjuster Log Notes, states as follows:

On or about [date], Plaintiff forwarded a set of Request for Production of Documents upon the attorney for the Defendant, Defendant Insurance Association, to be answered within 28 days after service.

In that Request for Production of Documents, the Plaintiff requested a full and complete copy of his PIP file with Defendant, Defendant Insurance Association.

The Defendant has produced documents relating to the Plaintiff’s claim for no-fault benefits. However, the Defendant failed to produce a full and complete copy of the file, including all of the adjuster log notes.

There is no privilege to adjuster log notes.

In addition to an Order Compelling Defendant to provide adjuster log notes, the Plaintiff seeks an award for expenses of this Motion, pursuant to MCR 2.313(5).

WHEREFORE, Plaintiffs respectfully request that this Court enter an Order compelling the Defendant to produce a full and complete copy of the PIP file, including all adjuster log notes, within seven days of this Motion, and award costs and attorney fees so wrongfully sustained in having to bring this motion.

Respectfully submitted,

LAW OFFICES OF MICHAEL J. MORSE, P.C.

Attorneys for Plaintiff

_____________________________________

[Name]

[Address]

[Phone number]

Dated:

BRIEF IN SUPPORT

INTRODUCTION

This is a first party action arising out of the Defendant Insurance Association’s unreasonable failure to provide no-fault benefits to its insured, Plaintiff. To date, Plaintiff is hindered by Defendant’s failure to participate in or cooperate with Plaintiff’s efforts to promote amicable discovery. Consequently, Plaintiff cannot adequately prepare for case evaluation and trial.

ARGUMENT

I. PLAINTIFF IS ENTITLED TO THE PRODUCTION OF THE DOCUMENTS IN DEFENDANT’S PIP FILE

Plaintiff relies on the Michigan Court Rules 2.302 and 2.313, and the case law cited below. Where one party fails to answer the discovery request of an opposing party, court rules provide that upon motion, the Court may issue an order compelling discovery. MCR 2.310(C)(3), 2.313(A). Because Defendant failed to fully and completely respond to Plaintiff’s requests for documents, this Court should issue an order compelling Defendant provide the requested documents.

According to the Michigan Supreme Court, discovery is to be “far-reaching, open, and effective,” and “discovery rules are to be liberally construed . . . to further the ends of justice.” Domako v. Rowe, 438 Mich. 347, 359; 475 N.W.2d 30 (1991). Court rules governing discovery make clear that the scope of discovery applies to “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” MCR 2.302(B)(1). In order to proceed with discovery, a plaintiff need only show that the matter is relevant and not privileged. Yates v. Keane, 184 Mich. App. 80, 82; 457 N.W.2d 693 (1990), reconsideration den., 437 Mich. 986, 470 N.W.2d 372 (1991). Discovery “should promote the discovery of the true facts and circumstances of the controversy, rather than aid in their concealment.” Domako, 438 Mich. at 360.

Plaintiff requests that Defendant respond to Plaintiff’s Request to Produce fully and completely and produce the adjuster’s log notes. Defendant has failed to provide an explanation as to why they have not produced these documents.

It cannot reasonably be argued that this information is not relevant to this pending action, and, therefore, clearly falls within the scope of information that is subject to discovery. MCR 2.302(B)(1). The information and materials sought by Plaintiff are not protected as privileged attorney work product or attorney-client confidences because the requested information was not prepared or gathered in preparation of litigation or for trial. Further, even if he considered trial preparation materials, Plaintiff has a substantial need of the materials requested in the preparation of his case and is unable, without undue hardship, to obtain the equivalent by other means. Finally, Plaintiff has only requested factual information, not mental impressions, legal conclusions, or other commonly recognized attorney work product.

A. THE ATTORNEY-CLIENT PRIVILEGE DOES NOT PROTECT THE PIP CLAIMS FILE

The Defendant cannot claim that attorney-client privilege protects the contents of the PIP file, as this is contrary to Michigan law. The Court of Appeals holds that this privilege does not apply to insurance claims files and that such...