UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOSEPH ELWELL, CRYSTAL )

ELWELL, DEBORAH BALDWIN, )

Individually and as custodian for her )

Minor children WM and AM, )

ROBERT BALDWIN, )

) Case No. 2:16-CV-158

Plaintiffs, )

)

v. ) Mag. Judge Andrew Rodovich

)

FIRST BAPTIST CHURCH OF )

HAMMOND, INDIANA, INC., )

)

Defendant. )

DEFENDANT FIRST BAPTIST CHURCH OF HAMMOND, INDIANA, INC.’S REPLY

BRIEF IN FURTHER SUPPORT OF THE MOTION FOR RECONSIDERATION

In its August 1, 2017 Opinion and Order, this Court wrote: “First Baptist has not

specifically identified the correspondence, communications and/or notes that it asserts are

privileged. The applicability of the privilege must be established as to each question asked or

document sought. Therefore, any objection has been waived.” Doc. 66 at 6 (citation omitted).

Plaintiffs read this language broadly, to act as a blanket waiver to all documents that

might be covered by the insurer-insured privilege, including documents previously identified as

privileged. First Baptist believes the waiver language applies only to the subpoenas that were the

subject of the Court’s August 1, 2017 Order. See Doc. 66 at 2 (describing the scope of the five

subpoenas). The requests in the subpoena were the only matters before the Court and that is all

the Order could address. In other words, First Baptist is not asking the Court to overturn its

ruling on the motion to quash; First Baptist merely seeks clarification or reconsideration with

respect to the waiver language.

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WAIVER IS A PARTICULARLY HARSH SANCTION

Waiver is a “harsh sanction, particularly when privilege objections are raised, and there is

insufficient evidence of [a party’s] bad faith or willfulness . . . .” Romary Assocs., Inc. v. Kibbi

LLC, No. 1:10-CV-376, 2011 WL 4005346, at *5 (N.D. Ind. Sept. 8, 2011); see also Lucas v.

Gold Standard Baking, Inc., No. 13 CV 1524, 2017 WL 3394726, at *2 (N.D. Ill. Aug. 8, 2017)

(“[F]inding a waiver of privilege for procedural violations is a harsh sanction.”); Cunningham v.

Smithkline Beecham, 255 F.R.D. 474, 481 (N.D. Ind. 2009) (Rodovich, M.J.) (“[W]aivers of

privilege are a serious sanction.”). In Cunningham, this Court ordered the defendant to provide a

detailed privilege log that sufficiently explained the privilege of any disputed material and

warned the defendant that any failure to provide an appropriate privilege log within thirty days

would then “constitute a waiver of any privilege.” 255 F.R.D. at 481. Imposing waiver as a

sanction is all the more severe when there is no prejudice to the other party. See Romary

Assocs., 2011 WL 4005346, at *4.

There is no identifiable prejudice to the Plaintiffs in this case. There would, however, be

a clear prejudice to First Baptist if First Baptist is deemed to have waived its right to assert the

insurer-insured privilege. This waiver, depending on its scope, could impact all past and future

discovery requests. See Memorandum of Law in Support of the Motion for Reconsideration,

Doc. 69 at 3-5. Indeed, Plaintiffs have already begun to assert that First Baptist “waived any

objection to document production based upon the insurer-insured privilege . . . .” Doc. 69-2.

Plaintiffs make this argument even though First Baptist specifically raised the insurer-insured

privilege previously and provided Plaintiffs with the relevant privilege log. Doc. 69-1.

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FIRST BAPTIST HAS IDENTIFIED REASONS THE REDACTED DOCUMENTS ARE

PRIVILEGED

Plaintiffs argue that First Baptist failed to provide a specific reason that the redacted

documents are subject to the insurer-insured privilege. Doc. 72 at 4. This is incorrect. First

Baptist has repeatedly argued that the documents at issue contain statements from the insured to

the insurer concerning an act that is now part of a lawsuit. See, e.g., Doc. 61 at 5-8; Doc. 69 at 3-

5; see also Doc. 69, Ex. A. This argument speaks to the core of what the insurer-insured

privilege seeks to protect. See Richey v. Chappell, 594 N.E. 443, 447 (Ind. 1992). First Baptist

has provided specific reasons why the redacted documents are subject to the insurer-insured

privilege.

CONCLUSION

For all of the reasons stated above, as well as those raised in its Motion to Reconsider the

August 1, 2017 Order and supporting memorandum, Docs. 68-69, First Baptist respectfully

requests that the Court reconsider and/or clarify its August 1, 2017 Opinion and Order, to specify

the scope of the waiver of the insurer-insured privilege.

Dated: September 7, 2017

Respectfully submitted,

HeplerBroom, LLC

/s/ Justin K. Curtis

Justin K. Curtis

HEPLERBROOM, LLC

2929 Carlson Drive, Suite 304

Hammond, IN 46323

(219) 427-5562

justin.curtis@heplerbroom.com

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CERTIFICATE OF SERVICE

I hereby certify that on September 7, 2017, I electronically filed the foregoing,

Defendant’s Reply Brief in Further Support of the Motion for Reconsideration, with the Clerk

of the Court using the CM/ECF system, which will send notification of such filing(s) to the

following attorneys of record.

John S. Burke

Jared M. Schneider

Higgins & Burke, P.C.

2560 Foxfield Rd. Suite 200

St. Charles, IL 60174

Phone No. (630) 762-9081

jburke@higginsandburke.com

jschneider@higginsandburke.com

/s/ Justin K. Curtis

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