*1 This matter is before the court on Subscriber Plaintiffs' Rule 72 Objection to Discovery Order No. 33. (Doc. # 756). The matter has been fully briefed. (Docs. # 793 and 804).

I. Background

Discovery Order No. 33 relates to a dispute between Subscriber Plaintiffs (“Subscriber Plaintiffs” or “Plaintiffs”) and Blue Cross Blue Shield of Alabama (BCBS-AL) regarding whether BCBS-AL has produced all documents requested by Plaintiffs related to BCBS-AL's filed-rate defense. In particular, Discovery Order No. 33 addresses an analysis performed (and, to some extent, which may be continuing) by BCBS-AL's chief actuary, Noel Carden, to attempt to identify and quantify variances between (1) the premium rates filed with the Alabama Department of Insurance and (2) those actually charged to and paid by BCBS-AL insurance subscribers from 2008 through 2013.

BCBS-AL has argued that the materials have never been formally requested by Plaintiffs and, in any event, they are subject to work production protection and the attorney-client privilege. Subscriber Plaintiffs have responded by noting that RFP No. 2 in their Second Set of Requests for Production requested production of all databases and documents currently in existence in any form that contain information used to perform “any analysis or study of Premiums charged by Defendants separately or severally.” Subscriber Plaintiffs further contend that BCBS-AL waived any privilege it might have had because it did not previously assert any privilege with respect to the report, failed to produce a privilege log, and should not be allowed to now claim the privilege.

In Discovery Order No. 33, Judge Putnam found that Carden's report(s), work notes, and related papers were created due to this pending litigation. (Doc. # 756 at 9). Carden testified that he undertook the variance analysis at the direction of in-house and outside counsel. (Doc. # 730-1). Therefore, Judge Putnam concluded that the Carden analysis reports, notes, and work papers are protected opinion work product which is not vulnerable to subject matter waiver of the protection. Accordingly, he denied Subscriber Plaintiffs' motion seeking their production. (Doc. # 756 at 13).

II. Discussion

After careful consideration, and for the reasons explained below, the court upholds Judge Putnam's decision.

In their Objections, Subscriber Plaintiffs argue that Carden's report is fact, not “opinion,” work product because it was not prepared by an attorney, and that BCBS-AL procedurally waived any privilege by failing to identify the Carden report on a timely privilege log. (Doc. 763 at 7). Subscriber Plaintiffs further argue that BCBS-AL waived any privilege attaching to the Carden report by discussing it, without any privilege objection, in the Carden and Ostlund depositions. (Doc. 763 at 8).

BDBS-AL responds that all of its discovery responses, including its response to Subscriber Plaintiffs' Rule 30(b)(6) deposition notice, generally have asserted the attorney client privilege and work product doctrine objections. Further, BCBS-AL argues that, under Discovery Order No. 7, (1) a party may assert a claim of privilege “at any time,” and (2) production of a privileged document does not waive any privilege. (Doc. # 356 at 29-30).

*2 The work-product doctrine, which is included within the scope of Federal Rule of Civil Procedure 26(b)(3), encompasses a two-tiered approach to work product in which “fact work product” and “opinion work product” are afforded different levels of protection. Fed.R.Civ.P. 26(b)(3). That is, in dealing with fact work product and opinion work product, Rule 26(b)(3) makes a critical distinction between materials prepared in anticipation of litigation and materials that reflect an attorney or party representative's mental process. Hickman v. Taylor, 329 U.S. 495, 511 (1947). Fact work product (which sometimes is referred to as “ordinary” work product) includes “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative,” Fed.R.Civ.P. 26(b)(3)(A), is subject to qualified protection, and may be discoverable upon a two-part showing: substantial need and an inability to obtain the substantial equivalent of the materials by other means without undue hardship. Fed.R.Civ.P. 26(b)(3)(A)(ii); Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994). In contrast, opinion work product encompasses material that reflects the “mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(B); Cox, 17 F.3d at 1422. “[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Cox, 17 F.3d at 1422 (internal quotation omitted).

Subscriber Plaintiffs argue that because the report was prepared by Carden, a non-lawyer, at best, it constitutes fact work product which is subject to waiver. But this argument finds little support in the language of the rule. By its terms, Rule 26(b)(3)(B) contemplates that the opinion work product protection applies to the mental impressions, conclusions, opinions, and legal theories of “a party's representative.” Fed.R.Civ.P. 26(b)(3)(B) (emphasis added). Carden testified as BCBS-AL's Rule 30(b)(6) corporate representative with regard to its rate filings. Thus, as a representative of a party, Carden's opinion work product also enjoys a nearly absolute privilege. Cox, 17 F.3d at 1422. For this and similar reasons under the particularized orders of this case, Subscriber Plaintiffs' waiver arguments ring hollow.

Finally, the court understands that Subscriber Plaintiffs have received the underlying financial and statistical data they need to perform the same analysis of rate variance that has been performed by Carden. Indeed, Judge Putnam invited Plaintiffs to identify any specific data, ESI, or documents they claim they have not received to enable them to perform a similar rate-variance analysis. Therefore, Subscriber Plaintiffs may, if they desire, perform their own analysis of the variance issue from the same source materials used by Carden.

IV. Conclusion

The court finds nothing in Discovery Order No. 33 that is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). For these reasons, Subscriber Plaintiffs' Rule 72 Objections to Discovery Order No. 33 (Doc. # 763) are OVERRULED.

DONE and ORDERED this October 28, 2016.