1

 The Honorable Andrew W. Bogue, United States Senior District Judge for the

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-3806

___________

Frank Foster d/b/a Foster’s Welding *

and Construction, *

*

 Appellant, *

*

 vs. * Appeal from the United

* States District Court

Clausen Miller, P.C. and Fireman’s * for the Eastern District

Fund Insurance Company, * of Arkansas. 

*

 Appellees. *

 * [UNPUBLISHED]

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Submitted: September 12, 2001 

 Filed: November 19, 2001 

__________

Before MORRIS SHEPPARD ARNOLD and BRIGHT, Circuit Judges, and

BOGUE,1

 District Judge.

_________

PER CURIAM.
2

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

2

Frank Foster appeals from a grant of summary judgment in favor of Fireman’s

Fund Insurance Company (“Fireman’s”). Foster argues on appeal that the district

court2

 erroneously concluded that Foster failed to produce any evidence of improper

conduct by either Fireman’s or Clausen Miller. Further, Foster claims the district

incorrectly concluded that the certain documents were privileged. We hold that no

error was made by the district court. 

This action arose from the events following a fire at a rendering plant insured

by Fireman’s. The law firm, Clausen Miller P.C. was hired by Fireman’s to

investigate the cause of the fire. The initial fire investigator was replaced by Clausen

Miller and the subsequent investigation led to the conclusion Foster’s employees,

who were on-site and had been welding and cutting near the building’s boilers, had

caused the fire. A subrogation suit was brought by Fireman’s and was tried to a jury

which determined that Foster had not started the fire. Foster then sued Fireman’s and

Clausen Miller for malicious prosecution.

 

Summary judgment is proper when “the non-moving party [fails] to make a

sufficient showing on an essential element of [his] case with respect to which [he] has

the burden of proof.” Hammond v. Northland Counseling Center, Inc., 218 F.3d 886,

891 (8th Cir 2000). The most essential element of malicious prosecution is whether

the defendant acted with malice in bringing the suit. 

In this case, the fire investigators believed that the welding and cutting taking

place near the building’s boilers was a potent fire source, but each of them reached

different conclusions as to how the fire actually started. Foster argues Clausen Miller

and Fireman’s directed investigator Randy Van Zant to conclude Foster had caused

the fire because Foster carried a substantial insurance policy. A careful review of the
3

record establishes the fact that Foster had no evidence that Van Zant’s opinion was

improperly influenced by either defendant. Since Van Zant’s expert opinion was

Foster had caused the fire there was probable cause for Fireman’s to pursue the

action. Even if we reached the conclusion that there was not probable cause for the

subrogation suit, “[m]alice does not flow as a legal presumption from a lack of

probable cause, however.” Milton Hambrice, Inc. v. State Farm Fire and Casualty

Co., 114 F.3d 722, 725 (8th Cir. 1997). Furthermore, the fact that Van Zant’s opinion

was in error does not demonstrate malicious behavior. Foster has failed to establish

two essential elements of a malicious prosecution claim, therefore, the district court

reached a proper conclusion.

Foster’s second claim of error was that he was denied access to documents in

the possession of Fireman’s and Clausen Miller which established a plan for

attributing the fire to Foster. The district courts have broad evidentiary discretion in

the handling of privileged documents. Stuart v. General Motors Corp., 217 F.3d 621,

630 (8th Cir. 2000). This Court reviews a “refusal to compel discovery for a gross

abuse of discretion affecting the fundamental fairness of the proceedings.” Id. The

defendants claimed the requested documents were privileged materials drafted in

contemplation of litigation, i.e. attorney work product. The district court received

briefing from both parties and rendered a decision on many of the materials. For a

few documents, the district court took the extraordinary step of performing an in

camera review to determine the exact nature of the materials. 

Our determination of whether the documents were prepared in

anticipation of litigation is clearly a factual determination: [T]he test

should be whether, in light of the nature of the document and the factual

situation in the particular case, the document can fairly be said to have

been prepared or obtained because of the prospect of litigation.

Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987).
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As in most factual determinations, this Court is in no better position than the

district court to review the documents and circumstances of the action. Id. Foster has

failed to present any evidence, let alone a “substantial need of the materials ... and

that the [Foster] is unable without undue hardship to obtain the substantial equivalent

of the materials by other means” that would justify a decision contrary to the district

court’s conclusion. Fed. R. Civ. P. 26(b)(3). Foster’s mere speculation as to the

contents of the privileged materials is insufficient to warrant a reversal of the district

court’s determination, accordingly, we affirm.

 A true copy.

 Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.