IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA STEVEN POULOS, Plaintiff,

vs. ALLSTATE INSURANCE COMPANY, RMK INSURANCE GROUP, INC. and JOSE KUDJA, individually, and, REBECCA KUDJA, individually Defendants. / DEFENDANT, ALLSTATE INSURANCE COMPANYS RESPONSE TO PLAINTIFFS MOTION TO COMPEL PROPER RESPONSES TO PLAINTIFFS SECOND REQUEST TO PRODUCE Defendant, Allstate Insurance Company (Allstate), hereby responds to Plaintiffs Motion to Compel Proper Responses to Plaintiffs Second Request to Produce, dated July 12, 2013, and states as follows: I. FACTUAL BACKGROUND 1. On or about May 1, 2013, Allstate was served with Plaintiffs Second Request to CASE NO.: 11-23833

Produce, which contains 40 requests. 2. Plaintiffs requests are overbroad, vague, and susceptible to multiple

interpretations, and so counsel for Allstate spoke several times at length with counsel for Plaintiff via telephone in an attempt to clarify and/or narrow the requests to determine exactly what documents Plaintiff was seeking.

3.

After participating in those discussions with counsel for Plaintiff, counsel for

Allstate conducted multiple interviews with Allstate employees in an attempt to locate documents which were responsive to Plaintiffs clarified and/or narrowed requests. 4. Counsel for Allstate advised counsel for Plaintiff that it had identified some

responsive documents, but that due to the nature of the documents identified, Plaintiff would have to enter into a confidentiality agreement with Allstate in order for the documents to be produced. 5. Counsel for Allstate emailed a proposed confidentiality agreement to counsel for

Plaintiff on July 3, 2012. 6. On July 5, 2013, counsel for Allstate and counsel for Plaintiff spoke via telephone

and agreed that later that day Allstate would serve responses to requests 20 through 32 of Plaintiffs Second Request to Produce, and that it would not produce the initial responsive documents it had identified until the confidentiality agreement had been executed. Counsel for both parties further agreed that Allstate had additional time to respond to the remaining requests and produce documents related to those requests. 7. Per the parties agreement, on July 5, 2013, Allstate served written responses to

requests 20 through 32 of Plaintiffs Second Request to Produce. Allstates responses indicated that documents bates numbered AIC0000001 AIC000544 were responsive to Plaintiffs requests and would be produced once Plaintiff executed the confidentiality agreement. 8. In contradiction of the parties agreement and without warning, Plaintiff filed his

Motion to Compel Proper Responses to Plaintiffs Second Request to Produce on July 12, 2013.

9.

Counsel for Plaintiff finally executed the confidentiality agreement on July 16,

2013. That same day, Allstate produced documents bates numbered AIC0000001 AIC000544 to counsel for Plaintiff via Federal Express. 10. Plaintiffs motion requests that the court determine that if Allstate did not file any

objections to the remaining requests by July 22, 2013, then the objections should be deemed waived. However, counsel for Plaintiff extended that deadline to July 31, 2013. 11. On July 31, 2013, Allstate had still not collected all of the documents which were

responsive to the remaining requests. Therefore, in order to preserve objections, Allstate served its Objections to Numbers 1 19 and 33 40 of Plaintiffs Second Request to Produce on July 31, 2013. 12. On October 31, 2013, Allstate served supplemental responses to Plaintiffs Documents bates numbered AIC000545 AIC000682

Second Request to Produce.

accompanied Allstates supplemental response. 13. Allstates supplemental response provides additional details regarding its

objections to Plaintiffs requests. However, Allstate writes further to provide support for its attorney-client and work product objections to request number 19. II. ARGUMENT 14. privilege log. Privileged documents responsive to request number 19 are identified in Allstates These documents are privileged because they are investigative materials of

Allstate that were prepared in anticipation of litigation, or because they are privileged communications between employees of Allstate and attorneys for Allstate. 15. Joe Cackowski, an Allstate compliance analyst, conducted a regional compliance

review for the RMK Insurance Group in which he analyzed information in Allstates system

regarding the RMK Insurance Groups policies and policyholders. At the time Mr. Cackowski conducted the compliance review, he knew his findings could result in disciplinary action and/or litigation against the RMK agency, its principals or staff. Since he anticipated that the

compliance review could lead to litigation, he maintained his complete investigation file, including his summaries, as confidential. 16. Allstates Corporate Security department then opened an investigation into the

RMK Insurance Group after it received the regional compliance review regarding the RMK agency. Corporate Securitys investigation was conducted at the direction of an attorney for Allstate and pursuant to the attorney-client privilege. 17. The Corporate Security department knew that its investigation into the RMK

agency could result in disciplinary action (including termination of RMKs Exclusive Agency Agreement with Allstate) and litigation against the RMK agency, its principals, and staff. 18. Corporate Securitys findings were sent directly to an attorney for Allstate, and

advice regarding what actions should be taken against the RMK Insurance Group was given by an attorney for Allstate. Corporate Securitys investigation files related to the RMK Insurance Group have been maintained as confidential. 19. Allstates investigative materials, which were prepared in anticipation of

litigation, constitute work product and are not subject to discovery. See Federal Express Corp. v. Cantway, 778 So. 2d 1052, 1053 (Fla. 4th DCA 2001) ([I]nvestigative materials of a party, when prepared in anticipation of litigation, constitute work product and are not subject to discovery . . . .); Publix Supermarkets, Inc. v. Johnson, 959 So. 2d 1274, 1275 (Fla. 4th DCA 2007) (same); Anchor Natl Financial Servs., Inc. v. Smeltz, 546 So. 2d 760, 760 (Fla. 2d DCA

1989) (Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.) 20. Further, Allstates investigative materials are privileged in this litigation even

though its employees anticipated litigation with the RMK agency, its principals, or staff, and not with Plaintiff. See Publix Supermarkets, Inc. v. Johnson, 959 So. 2d 1274, 1275 (Fla. 4th DCA 2007) (past investigative materials prepared in anticipation of litigation with past shoplifters retained work product status in present lawsuit against shoplifter); Toward v. Cooper, 634 So. 2d 760, 761 (Fla. 4h DCA 1994) (documents retained work product status even though prepared in anticipation of litigation with a different party); DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988, 990 fn.1 (Fla. 3d DCA 1994) ([P]laintiff argued that the work product privilege was available only for work product prepared in anticipation of this litigation, but is not available for materials prepared in anticipation of other litigation. Rule 1.280 is not so limited.) (emphasis in original); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So. 2d 1087, 1089 (Fla. 1st DCA 1981) (information obtained by hospital in its investigation of a fire was work product as to initial wrongful death litigation and in subsequent litigation). 21. The rationale behind the work product doctrine is that a party should not be

entitled to prepare his or her case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures. Intercontinental Properties, Inc. v. Samy, 685 So. 2d 1035, 1036 (Fla. 3d DCA 1997). 22. Plaintiff is not entitled to receive Allstates privileged work product materials

when he can use the ordinary tools of discovery to learn the facts for himself. See Id (opposing party can learn facts by propounding interrogatories and taking depositions). Plaintiff has not

sought any of the requested information by way of interrogatories, and no depositions have been taken in this case. WHEREFORE, Defendant, Allstate Insurance Company, respectfully requests that this Court enter an Order denying Plaintiffs Motion to Compel Proper Responses to Plaintiffs Second Request to Produce, sustaining Allstates objections to Plaintiffs Second Request to Produce, and for such other and further relief as this Court deems appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by e-mail to Mark S. London, Esquire and Lisa J. London, Esquire at filings@thelondonlawfirm.com; mark@thelondonlawfirm.com; and gtrglfr@gmail.com, (Counsel for Plaintiff), and Sean L. Collin and Philip M. Snyder at family_civil@lyonssnyder.com and sean@lyonssnyder.com, (Counsel for Defendants, RMK Insurance Group, Inc., n/k/a RMK Consulting Group, Jose Kudja and Rebecca Kudja) this 31st day of October, 2013.

s/ Brett M. Carey LORI J. CALDWELL Florida Bar No. 0268674 E-mail: lcaldwell@rumberger.com (primary) E-mail: docketingorlando@rumberger.com and lcaldwellsecy@rumberger.com (secondary) BRETT M. CAREY Florida Bar No. 0091355 E-mail: bcarey@rumberger.com (primary) E-mail: docketingorlando@rumberger.com and bcareysecy@rumberger.com (secondary) RUMBERGER, KIRK & CALDWELL A Professional Association Lincoln Plaza, Suite 1400 300 South Orange Avenue (32801) Post Office Box 1873 Orlando, Florida 32802-1873 Telephone: (407) 872-7300 Telecopier: (407) 841-2133 Attorneys for Defendant, Allstate Insurance Company