Civil Practice – Discovery – Motions to Quash – Privileges – Tort/Negligence – Auto Accident – Insurance

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Smyth v. Williamson (Lawyers Weekly No. 002-106-14, 10 pp.) (David Norton, J.) 2:13-cv-02553; D.S.C.

Holding: Where plaintiff seeks to depose the defendant’s auto insurer to find out (1) whether defendant gave any statements to the insurer and, if so, the substance of those statements; and (2) whether the insurer communicated with defendant regarding plaintiff’s injuries, health, medical bills, or condition, plaintiff is not seeking documents or tangible things; therefore, the work-product doctrine does not apply.

The court denies the motions to quash filed by defendant and her insurer. Plaintiff’s deposition of the insurer is limited to 10 minutes and to the matters set out above.

Insurer’s Motion to Quash

The insurer’s answers to the deposition regarding whether defendant provided a recorded statement and whether the insurer told her about plaintiff’s condition are at least marginally relevant to defendant’s credibility. Therefore, relevance does not provide a proper basis for quashing the deposition.

The insurer has not articulated any reason why communications between the insurer and defendant should be subject to the attorney-client privilege.

Fed. R. Civ. P. Rule 26(b)(3)(A) applies to “documents” and “tangible things,” and plaintiff is not seeking discovery of any such items; rather, she is seeking to depose an insurance company representative. In the same vein, while the work-product protection may extend to documents prepared anticipation of litigation, the facts underlying such a document are not protected.

Because plaintiff is not seeking any tangible work product, and because the insurer has not articulated why the attorney-client privilege should apply, privilege is not an appropriate reason to quash the subpoena.

Defendant’s Motion to Quash

Because South Carolina does not recognize a physician-patient privilege, privilege does not provide a proper rationale for the court to grant defendant’s motion to quash plaintiff’s subpoena of defendant’s medical records. Since defendant was not a mental health patient treated by the

State Department of Mental Health, the privilege set out in S.C. Code Ann. § 44-22-90 does not apply.

Nurse Sharon Martin’s records could contain evidence relevant to this case. First, defendant’s mental condition is at issue here because the complaint alleges that she acted recklessly, willfully, and wantonly in causing plaintiff’s injuries. Additionally, defendant’s phone records indicate that she sent and received text messages from Martin before and after the collision and had three telephone calls with Martin after the collision.

The court is satisfied that the subpoena served on Martin is reasonably calculated to lead to the discovery of admissible evidence and therefore denies defendant’s motion to quash.

Motions denied.