ROBIN C. WILLIG, as Executrix of the Estate of RHODES K. SCHERER,, Plaintiff, v. CONSECO SENIOR HEALTH INSURANCE COMPANY and CONSECO, INC., foreign corporations, Defendant Case No. 04-CV-923-TCK-FHM United States District Court, N.D. Oklahoma Signed May 19, 2006 Counsel Andrew Charles Jayne, Baum Glass Jayne & Carwile, PLLC, Walter Dewey Haskins, III, James Newton Edmonds, Atkinson Haskins Nellis Brittingham Gladd & Fiasco, Tulsa, OK, for Plaintiff. Garrett Anthony Phipps, James Joseph Dries, Mark Lionel Karasik, Baker & McKenzie LLP, Chicago, IL, Jason Lee Glass, Baum Glass Jayne & Carwile, PLLC, Philip Raymond Richards, Richards & Connor, Tulsa, OK, Thomas David Hird, Federal Public Defender (OKC) Western District of Oklahoma, Oklahoma City, OK, for Defendant. McCarthy, Frank H., United States Magistrate Judge ORDER *1 On May 17, 2006, the Court heard arguments on the following motions: Plaintiff's Motion for In Camera Inspection and Motion to Compel the Production of Documents from Conseco Senior's Post-Suit Claim File [Dkt. 153], Plaintiff's Motion to Compel Disclosure of Identities of Individuals Involved in the Post-Suit Payments and Handling of the Claim [Dkt. 158], and Defendant's Motion for a Protective Order [Dkt. 163]. In the course of responding to Plaintiff's motions, Defendant agreed to produce documents for in camera inspection and provided identification of individuals involved in the post-suit payments and claims handling. The issues remaining for resolution are: in camera review of documents and decision concerning applicability of attorney-client privilege or work product doctrine to the redacted and withheld documents; whether Defendant will be permitted to take a second Fed.R.Civ.P. 30(b)(6) deposition; whether Plaintiff will be permitted to take the depositions of those persons identified on the privilege log, including paralegal Tia Jackson; the scope of those depositions; and Plaintiff's request for a fee award in connection with these discovery motions. In Camera Review The Court has reviewed the documents submitted to determine whether the withheld documents and redacted portions qualify as attorney-client communication or attorney work product. A federal court exercising diversity jurisdiction applies the law of privilege which would be applied by the courts of the forum state. At the hearing counsel discussed whether Oklahoma, Iowa, or Indiana law applies concerning attorney-client privilege. It makes no difference, however, because the law is virtually identical in these jurisdictions. The attorney-client privilege is designed to shield the client's confidential disclosures and the attorney's advice. The burden of establishing the applicability of the privilege to a particular communication rests upon the party asserting the privilege. Sims v. Travelers Insurance Company, 16 P.3d 468, 470 (Ok. Civ. App. 2000), Bartlett v. State Farm Mutual Automobile Insurance Company, 206 F.R.D. 623, 626 (May 2002). The question whether documents are properly withheld under a claim of work product is determined by reference to federal law. The party relying on a claim of work product has the burden of establishing the documents are eligible for protection. Harper v. Auto-Owners Insurance Company, 138 F.R.D. 655, 659 (S.D. Ind. 1991). The redacted and withheld documents consist mainly of e-mails. They do not address the rationale for the claim payment decision in this case. In broad terms they consist primarily of communication to and from paralegal Tia Jackson, or counsel concerning Plaintiff's return of claim checks, requests made by Tia Jackson for information concerning the issuance, stop payment and re-issuance of claim checks, and Conseco personnel responses to and follow up on those requests. The withheld documents also include e-mail correspondence concerning Conseco's responses to Plaintiff's discovery requests. Many of the pages duplicate the same e-mails over and over as several recipients replied or forwarded the e-mails. Since Plaintiff's claim was still being processed when suit was filed, the file was flagged so that all communication with Plaintiff concerning the claim would be handled through the lawyers. That fact does not transform otherwise routine claims-handling procedures into attorney-client communications or work product. However, upon review of the documents, the Court finds that the redacted and withheld e-mails constitute either attorney-client communications or work product and were properly withheld. Although production of work product materials may be ordered upon a showing of substantial need and the inability to obtain the information by other means, no such need has been shown at this time and in view of the upcoming deposition of Christine Bate, it does not appear that this issue will need to be addressed. Having reviewed the documents, and considering Defendant's representation that Christine Bate will testify fully about her claims handling activity, the Court is convinced that all of the discoverable information which may be referenced in the withheld or redacted documents will be available through her testimony. *2 Also withheld is a memorandum to in-house counsel concerning the chronology of events in the case. The Court finds that document to be classic attorney-client communication. Defendant's Request for Protective Order [Dkt. 163] Defendant's Request for Protective Order is GRANTED in part and DENIED in part. Plaintiff has requested a second deposition under Fed.R.Civ.P. 30(b)(6). The Court is not persuaded that a party is limited to one deposition under Fed.R.Civ.P. 30(b)(6), absent leave of court. The Court finds that Plaintiff's request for a Rule 30(b)(6) deposition is reasonable. Therefore, Defendant's motion to quash that deposition is DENIED. Based on the Court's in camera review of the documents listed on Defendant's privilege log, the Court concludes that Defendant's characterization of Christine Bate as the person most knowledgeable about post-suit attempts to pay the Scherer Estate's insurance claim is accurate. Further, as reflected by those documents, Tia Jackson's involvement with the case is limited to her role as a paralegal engaged in this litigation. Therefore, Defendant's motion to quash Tia Jackson's deposition is GRANTED. Also as reflected in the documents, it appears that two of the other individuals whose depositions are sought, Joseph Dellinger and Pamela Smith, did not engage in decision-making concerning payment of the claim. Rather, their roles appear to have been limited to the mechanical functions of seeing that the claims checks were issued. IT appears Bilqis Jami played some role in calculating the benefit amount. From the Court's review of the documents, it does not appear that these people will have information in addition to that which may be obtained from Ms. Bate. However, since their roles with Conseco are not limited to litigation, the Court sees no obstacle to Plaintiff taking their depositions. Defendant's motion for quash the depositions of Joseph Dellinger, Pamela Smith, and Bilqis Jami is DENIED. Concerning the scope of the depositions of these individuals, until an actual controversy arises the Court cannot provide any guidance beyond that contained in Fed.R.Civ.P. 26(b). However, the Court will be available by telephone should a problem arise during the course of those depositions. Plaintiff's Request for Attorney Fees At the hearing both parties expressed frustration with the contentious course of discovery in this case. The Court certainly shares that frustration. A review of the correspondence attached to the parties' briefs reveals that neither party is entirely blameless. Further, it does not appear that counsel have complied with the requirement of LCvR 37.1 to meet and confer in good faith to resolve discovery disputes. The Court expects such compliance in regard to future disputes. Each party will be required to bear its own costs with respect to the recent spate of discovery-related motions. Plaintiff's request for an award of attorney fees is therefore DENIED. CONCLUSION Plaintiff's Motion for In Camera Inspection and Motion to Compel the Production of Documents from Conseco Senior's Post-Suit Claim File [Dkt. 153] is GRANTED in part and DENIED in part. In camera inspection was performed, motion to compel is denied. Plaintiff's request for attorney fees is DENIED. *3 Plaintiff's Motion to Compel Disclosure of Identities of Individuals Involved in the Post-Suit Payments and Handling of the Claim [Dkt. 158] is DENIED as Moot. Plaintiff's request for attorney fees is DENIED. Defendant's Motion for a Protective Order [Dkt. 163] is GRANTED in part and DENIED in part as set forth herein. SO ORDERED this 19th day of May, 2006.