IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN E. WENIGER, et al. : CIVIL ACTION

:

v. :

:

NATIONWIDE INSURANCE :

COMPANY : NO. 05-5396

MEMORANDUM

Bartle, C.J. May 26, 2006

Plaintiffs John and Lori Weniger have moved to compel

defendant Nationwide Mutual Insurance Company ("Nationwide") to

produce documents subject to the attorney-client privilege on the

basis of the crime-fraud exception. 

In 1993, Mr. Weniger was involved in a motor vehicle

accident and received lost wage benefits from his insurer,

Nationwide. On July 16, 2000, Mr. Weniger was involved in

another motor vehicle accident and sought under-insured motorist

benefits. Dissatisfied with the amount of the arbitration award

in his favor, Mr. Weniger and his wife instituted an action

against Nationwide in the Court of Common Pleas of Philadelphia

County for bad faith, fraud, violation of Pennsylvania's Unfair

Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann.

§ 201-1 et seq., and breach of contract. Defendant timely

removed the action to this court on the basis of diversity of

citizenship.

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Plaintiffs have requested certain documents related to

Nationwide's handling of the 1993 and 2000 accident claims which

defendant refuses to produce on the ground of attorney-client

privilege. Plaintiffs argue that these documents must be turned

over to them pursuant to the crime-fraud exception to the

privilege. See Clark v. United States, 289 U.S. 1 (1933). A

party challenging the privilege on this basis 

must make a prima facie showing that (1) the

client was committing or intending to commit

a fraud or crime, and (2) the attorney-client

communications were in furtherance of that

alleged crime or fraud. A "prima facie

showing" requires presentation of "evidence

which, if believed by the fact-finder, would

be sufficient to support a finding that the

elements of the crime-fraud exception were

met."

In re Grand Jury Investigation, 445 F.3d 266, 274 (3d Cir. 2006)

(citation omitted). 

Plaintiffs maintain that defendant fraudulently

challenged the causation of Mr. Weniger's injuries in the 2000

accident. In their complaint, plaintiffs contend that at the

arbitration for the 1993 accident Nationwide took the position

that Mr. Weniger "did not have injuries caused by the December 4,

1993 crash." In their motion to compel, however, plaintiffs

modify their stance. They now maintain that Nationwide argued at

that time only that Mr. Weniger did not sustain "serious"

injuries in the 1993 accident. In any event, plaintiffs assert

that Nationwide's positions in connection with the 1993 and the

2000 accidents are inconsistent. Plaintiffs also assert that it

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was inconsistent for Nationwide to pay for certain of Mr.

Weniger's medical procedures for the 2000 accident through his

first-party medical benefits claim and then argue at the underinsured motorist benefits arbitration that his injuries were not

causally related to that accident. Even assuming, without

determining, that Nationwide has taken inconsistent positions,

plaintiff has not made a prima facie showing of fraud.

Plaintiffs ask this court to conduct an in camera

review of the privileged documents to determine whether the

attorney-client communications were in furtherance of a fraud. A

party seeking to vitiate the privilege is not automatically

entitled to such review. United States v. Zolin, 491 U.S. 554,

571 (1989). Instead, he "must present evidence sufficient to

support a reasonable belief that in camera review may yield

evidence that establishes the exception's applicability." Id. at

574-75. Plaintiffs have presented no such evidence.

Accordingly, the motion of plaintiffs to compel

production of documents will be denied.

 

Case 2:05-cv-05396-HB Document 15 Filed 05/26/06 Page 3 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN E. WENIGER, et al. : CIVIL ACTION

:

v. :

:

NATIONWIDE INSURANCE :

COMPANY : NO. 05-5396

ORDER

AND NOW, this 26th day of May, 2006, for the reasons

set forth in the accompanying Memorandum, it is hereby ORDERED

that the motion of plaintiffs "to compel production of Rule

26(a)(1)(b) disclosure documents" is DENIED.

BY THE COURT:

/s/ Harvey Bartle III 

C.J.

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