Dealing With Attorney-Client Privilege And Work Product Doctrine Objections To Discovery Requests

In Our Judgment
By Terri Todd & Ted Smith

In our judgment, receiving Answers To Interrogatories or responses to Requests For Production in which opposing counsel objects to answering certain questions or producing documents, stating that "the information or documents being sought were obtained or prepared in anticipation of litigation and are therefore protected from discovery by the attorney work product doctrine and/or attorney-client privilege" occurs too frequently. How often do attorneys follow-up on that kind of response and press opposing counsel for a proper response to the tendered Interrogatories or Request For Production? Probably not often enough.

The purpose of this article is to provide a concise summary of Indiana law relative to the work product doctrine and attorney-client privilege and to provide a form for an Interrogatory that can be used to follow-up with regard to general objections to Interrogatories and Requests For Production based on the work product doctrine and attorney-client privilege, which can be used to require opposing counsel to respond fully and appropriately when such objections are made.

THE DISTINCTION BETWEEN THE ATTORNEY-CLIENT PRIVILEGEAND THE WORK PRODUCT DOCTRINE

Under Indiana law, communications between an attorney and client are privileged and not discoverable.(1) The attorney-client privilege is currently recognized by statute in Indiana.(2) However, the privilege was first recognized by judicial decision, as part of our common law.(3)

In In re Murphy(4), the Court compared the work product doctrine with the attorney-client privilege, and in its discussion, stated that:

Although the "attorney-client privilege and the work product doctrine arise from the same common law origin", the work product doctrine under contemporary law is "distinct from and broader than the attorney-client privilege". The items protected by the work product doctrine are not confined to attorney-client confidential communications. [Federal] Rule 26(b)(3) extends protection to all "documents and tangible things" that are prepared in anticipation of litigation or for trial. Included in this amorphous category are trial preparation documents that contain the fruits of the attorney's investigative endeavors and any compendium of relevant evidence prepared by the attorney. Also protected by Rule 26(b)(3) are the attorney's mental impressions, opinions and legal theories. (Citation omitted).

It has been said that "opinion work product enjoys a nearly absolute immunity and only in rare situations can it be discovered".(5) The privilege created by Trial Rule 26(b)(3) applies to intangible as well as tangible materials(6) and extends to a party or representative of a party if the information was gathered in anticipation of litigation.(7) The Indiana Supreme Court has also defined the scope of the attorney-client privilege as including communications between an attorney and client made through their agents and representatives.(8)

PURPOSES FOR THE WORK PRODUCT IMMUNITY DOCTRINE

According to the Indiana Court of Appeals:

The policy behind the rule of Hickman v. Taylor (1947), 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, and its progeny, now codified in Fed.R.Civ.P. 26(b)(3), the federal counterpart to our own trial rule, is to protect the integrity of the adversary process, not to protect all recorded opinions, observations and impressions an attorney or his advisors have made in connection with a legal problem. Coastal Corp. v. Duncan (D.Del., 1980), 86 F.R.D. 514, 522. Documents are work product because their subject matter relates to the preparation, strategy, and appraisal of the strengths and weaknesses of an action, or to the activities of the attorneys involved. 4 Moore's Federal Practice Sec. 26.64[1] at 26-349 (1970).

Therefore, the primary motivating purpose behind the creation of the document must be to aid in trial preparation. United States v. Gulf Oil Corp. (Temp.Emer.Ct.App., 1985), 760 F.2d 292, 296.(9)

In addition, it has been stated that "'[t]he primary purpose of the work product privilege is to assure that an attorney is not inhibited in his representation of his client by the fear that his files will be open to scrutiny upon demand of an opposing party. Counsel should be allowed to amass data and commit his opinions and thought process to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client'".(10)

INDIANA LAW RELATIVE TO A CLAIM OF PRIVILEGE  BASED UPON
THE WORK PRODUCT DOCTRINE

Trial Rule 26(B)(3) of the Indiana Rules of Trial Procedure provides in part that a party may obtain discovery of documents ... otherwise discoverable under subdivision (B)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney ... or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Determining the validity of the assertion of the work product privilege as the basis for protecting a statement or other document from disclosure to opposing counsel involves a two-tiered analysis. The threshold determination is whether the document sought to be protected from discovery was prepared "in anticipation of litigation".(11) If the document was prepared "in anticipation of litigation", the party seeking discovery has the burden of showing that he/she is "in substantial need of the materials in the preparation of his/her case" and that he/she "is unable without undue hardship to obtain the substantial equivalent of the materials by other means".(12)

With regard to the question of whether a document was prepared "in anticipation of litigation", the Indiana Court of Appeals has stated that "...we have identified one appropriate test of the 'prepared in anticipation of litigation' requirement as being that proposed by Professors Wright and Miller: 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".(13)

According to the Indiana Court of Appeals:

[d]ocuments are work product because their subject matter relates to the preparation, strategy and appraisal of the strengths and weaknesses of an action, or to the activities of the attorneys involved. 4 Moore's Federal Practice Sec. 26.64[1] at 26-349 (1970). Therefore, the primary motivating purpose behind the creation of the document must be to aid in trial preparation. United States v. Gulf Oil Corp. (Temp.E.Ct.App., 1985), 760 F.2d 292, 296. Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not entitled to the qualified immunity provided by this section. Advisory Committee's Explanatory Statement Concerning Amendments of the Discovery Rules, 48 F.D.R. 487, 501. Accord State v. Hogan (1992), Ind.App., 588 N.E.2d 560, trans. pending; DeMoss v. Rexall Drugs v. Dobson (1989), Ind.App., 540 N.E.2d 655; Cigna-INA Aetna, 473 N.E.2d at 1037-38.(14)

A party seeking to assert the [work product] privilege has the burden of proving "at the very least some articulable claim, likely to lead to litigation, [has] arisen. Id., at 1119 [Binks Mfg. Co. v. National Presto Industries, Inc. (7th Cir.1983), 709 F.2d 1109], quoting Coastal States Gas Corp. v. Department of Energy (D.C.Cir.1980), 617 F.2d 854, 865. While there is no clear answer as to when a document becomes a document prepared in anticipation of litigation, the test accepted by our court was announced in American Buildings Co. v. Kokomo Grain Co., Inc. (1987), Ind.App., 506 N.E.2d 56, trans. denied. There we said:

[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 ... at 63; quoting 8 Wright & Miller, Federal Practice & Procedure Sec. 2024, at 198 (1970).(15)

With regard to statements and other documents generated by liability insurance carriers, the Indiana courts have held that the decision as to the point at which preparation of documents is done "in anticipation of litigation" rather than for the purpose of claim investigation in the normal course of the insurance company's business turns on the particular facts involved in each case.(16)

Although it has been held that documents may enjoy nearly an absolute immunity if they contain the mental impressions, opinions, legal theories or conclusions of an attorney or a representative of a party to litigation(17), the Indiana Court of Appeals has made it clear that:

An insurance company cannot reasonably argue the entirety of its claim files are accumulated in anticipation of litigation when it has a duty to investigate, evaluate, and make a decision with respect to a claim by its insured. [Pete Renaldi's Fast Foods v. Great American insurance Cos. (M.D.N.C.1988), 123 F.R.D. 198, 202]. Because an insurance company has a duty in the ordinary course of business to investigate and evaluate claims made by its insureds, the claim files containing such documents usually cannot be entitled to work product protection. Id. If the insurer argues it acted in anticipation of litigation before it formally denied the claim, it bears the burden of persuasion by presenting specific evidentiary proof of objective facts demonstrating a resolve to litigate. Id., Binks, supra, at 1119. There is no clear cut rule to determine whether an insurance company's investigation is discoverable under T.R. 26(B)(3). Taroli, supra. The determination whether the investigation is discoverable depends upon the facts of each case. Id. Even after a claim is denied, reports of investigations filed thereafter which contain prior investigation or evaluations, or are merely a continuation of the initial routine investigation, may not be labelled as work product. Pete Renaldi, supra, fn. 4. citing APL Corp. v. Aetna Cas. & Surety Co. (D.Md.1980), 91 F.R.D. 10.(18)

According to the Indiana Court of Appeals, factors that may be considered in determining whether a statement or other document was created "in anticipation of litigation" include whether the claimant has hired an attorney; consultation between an insurance company and an attorney; an insurance company's denial of a claim; and other subjective factors that support the contention that litigation was anticipated.(19)

An investigation by an insurance company does not automatically require a finding that the investigation was conducted in anticipation of litigation.(20) Nor does the fact that a plaintiff has hired an attorney mandate a finding that an investigation was conducted "in anticipation of litigation".(21) However, the fact that an insurance carrier consulted with an attorney during its investigation of a claim is an "important factor which generally weighs in favor of finding a work product privilege".(22)

"It is not necessary that the document be prepared by an attorney in order for [work product] immunity to apply. Protection extends to trial preparation materials created by agents of attorneys and consultant advisors as well as information gathered with an eye toward litigation by the client himself. Id., Kokomo Grain, 506 N.E.2d at 61."(23) That is, the immunity afforded by the work product privilege is no longer limited to the attorney but extends to a party or representative of a party.(24)

It is also clear that the work product privilege extends to documents prepared prior to the filing of a lawsuit.(25) "'Indisputably, the work-product doctrine extends to material prepared or collected before litigation actually commences.'"(26)

Indiana law clearly provides that a claim of work product privilege must be asserted on a document-by-document basis; and, that a party may not rely upon a blanket claim of privilege for all documents contained in its file.(27) "A party seeking to avoid discovery has the burden of establishing the essential elements of the privilege being invoked"(28), and, a claim of privilege must be made on a question-by-question or document-by-document basis.(29) It has been said that the work product privilege"... must be asserted on a document by document basis and with the utmost clarity".(30) "Absent an articulation of specific reasons why the documents sought are privileged, the information is discoverable. Otherwise, the whole discovery process is frustrated and vital information is 'swept under the rug'".(31)

FOLLOW-UP INTERROGATORY REQUIRING OPPOSING COUNSEL TO
SPECIFICALLY ASSERT THE WORK PRODUCT PRIVILEGE ON A DOCUMENT-BY-DOCUMENT BASIS

The following Interrogatory can be used to follow-up and force opposing counsel to properly and specifically delineate on a document-by-document or question-by-question basis the documents or other information to which he/she objects to producing:

INTERROGATORY NO. 1: You objected to Request No. 1 in the Plaintiff's Request For Production previously tendered to the Defendant, stating that it "seeks information obtained in anticipation of litigation, which is protected by the doctrine of attorney work-product and the attorney-client privilege". In order for Plaintiff's counsel, and ultimately the Court, to determine whether that objection is well-taken, or whether good cause for the production of the requested documents exists, with respect to each such document or other item of tangible evidence, please state:

a) The title, form and nature of each such record, report, form, or other document, and a description of the nature and form of each such record, report, form, or other document or item of tangible evidence (e.g., state whether it is a written record, report, photograph, letter, tape recording, movie, transcribed statement, videotape, et cetera);

b) The date on which each item came into existence (e.g., the date on which any photographs were taken, statements were obtained, movies or videotapes were made, forms were filled out, et cetera);

c) The name, address, telephone number, employer, and job title or position of the author or creator of each such document or item of tangible evidence;

d) A general description of the subject matter of the document or other item of tangible evidence (without necessarily giving sufficient facts so as to disclose the substance of the document, et cetera);

e) Whether each such document or other item of tangible evidence has ever come into the possession of a third party; and,

f) If the answer to sub-part (e) of this Interrogatory is in the affirmative, state the name, address, telephone number, employer, and job title or position of each such third person; the date on which each such third person came into the possession of each document or other item of tangible evidence; and, the purpose for each individual coming into the possession of each such document or item of tangible evidence.

Please note that this Interrogatory does not seek information with regard to communications solely between the Defendant and his/her/its legal counsel, or does it seek the requested information with regard with regard to items prepared entirely by defense/plaintiff's counsel, such as defense/plaintiff's notes, memoranda, legal research, or the like.

PROPER MANNER OF ASSERTING THE ATTORNEY-CLIENT PRIVILEGE
OR
WORK PRODUCT DOCTRINE

The following example illustrates the proper method for asserting an objection to an Interrogatory or Request For Production based upon the attorney-client privilege or work product doctrine:

INTERROGATORY NO. 1: A complete copy of the insurance or investigative claim file developed by agents of the Defendant.

RESPONSE:

The Defendant's insurance carrier's investigation file consists of the following:

> A copy of the official Indianapolis Police Department report relative to the accident in which the Defendant and Plaintiff were involved

> Photographs of the van that the Defendant was operating at the time of the accident and of the scene -- which were taken on behalf of State Farm

> The photographs taken by the Indianapolis Police Department during the course of its investigation of the accident in which the Defendant and Plaintiff were involved

> A recorded statement given by the Defendant to his insurance carrier, State Farm

> A statement taken by State Farm from the eyewitness, John Brown

A copy of the police report and photocopies of all of the photographs mentioned above are being supplied to Plaintiff's counsel. The original photographs may be reviewed and/or copied upon request.

Defense counsel objects to producing the Defendant's statement because it is privileged. Defense counsel also objects to producing the statement taken from John Brown, based upon the work product privilege.

IN CAMERA REVIEW

As stated previously, a party must assert the work product privilege on a document-by-document basis and may not rely upon a blanket claim of privilege for all of the documents contained in its file or in its possession.(32) All material that is claimed to have been prepared in anticipation of litigation shall be presented to the trial court for in camera review so that the court can determine what materials are work product material. With regard to the manner in which documents should be submitted to the court for in camera review if it is necessary for the court to rule on which documents are discoverable, the Indiana Court of Appeals has stated that:

Submitting a voluminous batch of documents for in camera review does not satisfy a proponent's burden of establishing some or all of the documents deserve work product protection. Pete Rinaldi, supra, at 203. In cases involving large numbers of documents or where the nature of the document will not likely be readily apparent on its face to the uninitiated observer, the proponent of the work product protection must present the matter in camera to the court in a reviewable form which itemizes each document, provides a factual summary of its contents, and justification for withholding it. Id., See Delaney, Migdail & Young, Chartered v. I.R.S. (D.C.Cir.1987), 826 F.2d 124, 128. To supplement the rule in Petersen, infra, we impose the additional requirement the in camera disclosure in work product matters must be so complete and understandable the trial court need not (but may at its option) do any further research or review of other papers on the subject to clarify anomalous language contained in counsel's disclosing document. If such disclosure does not speak with the utmost clarity, the trial court may in the exercise of sound discretion reject it and deny the requested protection out of hand in the interests of judicial economy.(33)

RECENT CASES OF INTEREST

There have been a number of tort cases of first impression handed down by our state's Court of Appeals and Supreme courts during the first quarter of 1996. The issues involved in these cases include: the existence of a privilege to enter onto another's land implied by custom; guidance for proper venue for the filing of a wrongful death case; rejection of the intervening cause defense as a "knock-out defense" under comparative fault system; rejection of a single limit cap for derivative actions against the State; recognition of cause of action by injured worker against the parent company of her employer; the rejection of worker's compensation "exclusive remedy" defense for a wrongful death action by parents of a child against the mother's employer when the child's death was caused by exposure by the mother and the child, in utero, to fumes at work; and a clear ruling regarding the effect of the sunset provision for limitation of damages for wrongful death of a child.

Engine difficulties brought Jesse L. Frye to the door of the Rumbletown Free Methodist Church and its parsonage in Frye v. Rumbletown Free Methodist Church.(34) On March 5, 1992, Mr. Frye went up to the door of the parsonage to use the telephone or to borrow a can of gasoline after his car stopped running on the highway near the parsonage. After knocking on the door and receiving no response, he turned to leave. Just as he began to descend the steps of the parsonage, the top step moved, causing him to fall between the porch and the house. He was injured.

Mr. Frye claimed that he was an invitee and brought suit for injuries against the church. The church moved for and was granted summary judgment on the basis of lack of duty owed to Mr. Frye. Mr. Frye appealed asserting that he was a public invitee or at the very least a licensee to whom was owed the duty to be informed of hidden or latent dangers of which the property owners had knowledge.

The Court of Appeals rejected Mr. Frye's assertion that all church property is held open to the public to provide for those who may be in need. The Court of Appeals did find, however, that Mr. Frye was a licensee with "a privilege implied by custom to enter the parsonage premises". By this holding, the Court of Appeals specifically recognized for the first time in Indiana the statement set out in the Restatement (Second) of Torts S 330, Comment E:

The well established usages of a civilized and Christian community entitle everyone to assume that a possessor of land is willing to permit him to enter for certain purposes until a particular possessor expresses unwillingness to admit him. Thus a traveler who is overtaken by a violent storm or who has lost his way, is entitled to assume that there is no objection to is going to a neighboring house for shelter or direction.

The Indiana Supreme Court finally cleared the smoke surrounding the issue of identifying the proper county in which to file a wrongful death case. In RJR Nabisco Holdings, Corp. v. Dunn,(35) Craig Dunn and Phillip Wiley, as personal representatives, and Philip Wiley individually, brought a product liability action for wrongful death alleging that Phillip Wiley's wife's death was caused by second-hand smoke. Mr. Wiley's wife had been a resident of Grant County. The estate was opened in Grant County. Suit was filed in Delaware County, where Mrs. Wiley received all of her treatment for cancer and where she died. None of the defendants were residents of the State of Indiana. Mr. Wiley was not a resident of the State of Indiana. This left only the estate itself. The Supreme Court indicated that the estate was not a "person", "organization" or "governmental organization" within the meaning of Trial Rule 75(A)(1)-(10); and, as a result, venue would properly lie in any county of the State.

Defenses under the Comparative Fault Act (I.C. 34-4-33-1 et seq.) continue to be refined. In L.K.I. Holdings, Inc. v. Tyner,(36) the Court of Appeals held that the defense of intervening cause was no longer susceptible to summary judgment. In Tyner, Jason Tyner was a passenger in a car being driven by Sarah Tunney.

Ms. Tunney was involved in a crash at the intersection of Fall Creek Parkway and Brokenhurst Parkway. Jason Tyner sued L.K.I. Holdings, Inc., claiming that it was negligent in failing to maintain its road. L.K.I. Holdings, Inc. moved for summary judgment, in part, on the basis that any injuries to Jason Tyner were caused by the actions of Ms. Tunney -- which constituted an intervening cause. The Court of Appeals held that "the comparison of fault inherent in the doctrine of intervening cause has been incorporated into our comparative fault system. If Tunney's negligence was a proximate cause of the accident, such does not immunize L.K.I. Holdings, Inc. from liability caused by its negligence". In other words, apportionment principles of comparative fault apply.

In State v. Eaton,(37) the Court of Appeals addressed for the first time the issue of whether a single statutory cap is applicable to a derivative claim. In Eaton, Jeffrey Eaton was severely injured when he struck the rear of a truck while driving through dust which was created by State employees who had been "clipping" the shoulder of the highway on which Mr. Eaton was driving his motorcycle. The jury returned a verdict in favor of Jeffrey Eaton in the amount of $449,280 and in favor of Jeffrey's parents in the amount of $101,178.64. The larger award was reduced to the statutory limit of $300,000, but the loss of service award was allowed to stand. The State appealed, claiming that since the right of the parent to recover was derivative in nature, separate damages are not allowed. The Court of Appeals held that notwithstanding the fact that the parent's claim is derivative, there are two separate causes of action, one for the child for personal injury and another for the parent for property damage. As a result, there is a separate right for recovery and the single statutory cap does not apply to both. This case should be contrasted with the case of Medley v. Frye,(38) in which the Court of Appeals a month later, held that Mary L. Medley's claim for loss of consortium arose out of her husband's injuries and the insurer's payment for her loss was limited to the per person limits paid out by the insurer for her husband's injuries. While there may have been a difference between the policy language of the Medley case and the statutory language of the Eaton case, the jurisprudential policy underlying both decisions must be the same. The Medley case appears to have been incorrectly decided in light of the policy set out in Eaton.

Two important cases present new ways to seek redress for injuries and death. In McQuade v. Draw Tite, Inc.,(39) the Supreme Court upheld the right of an injured employee to seek redress for injuries in tort against her employer's parent corporation. Mary Jane McQuade was injured at work. She brought a worker's compensation action against her employer, Mongo Electronics. She also brought a negligence suit against Draw Tite, Inc., the parent company of Mongo Electronics. The trial court granted summary judgment in favor of the company. The Court of Appeals affirmed the trial court's decision. The Supreme Court vacated the decision of the Court of Appeals and remanded the case to the trial court, with orders to reinstate the corporation as the defendant in the case. In so holding, the Supreme Court noted that the "exclusivity of the Indiana's Worker's Compensation Act does not prevent an employee from suing his or her employer's parent corporation." The Court also noted that any such action must be founded on an alleged breach of duty of care separate and distinct from any vicarious liability attributable to a parent.

In Ransburg Industries v. Brown,(40) Rebecca and Brett Brown sued Rebecca's employer, Ransburg Industries, for the wrongful death of their child, Brandon, who they alleged, was exposed to noxious fumes, in utero. The Court of Appeals noted that this was the first time that Indiana had reviewed the issue of whether an action for injuries sustained by a child while in utero against a negligent employer is barred by the exclusivity provisions of the Indiana's Worker's Compensation Act. After looking to other jurisdictions, the Court concluded that the action for wrongful death was not derivative of Rebecca's claim for injuries. Rather, the action for wrongful death stands alone.

In Indiana Patient's Comp. Fund v. Anderson,(41) the Court of Appeals reviewed the damage limitation incorporated within I.C. 34-1-1-8 (which created a substantive right allowing parents to recover damages for the loss of their child's love and companionship). This limitation applied to all cases which accrued after May 7, 1987 and before October 31, 1990. By the express wording of the statute, the limitation for damages expired on November 1, 1992. The issue in the Anderson case was whether the limitation still applied to causes of action which accrued before October 31, 1990. The Court held that the expiration applied to all causes of action including those which accrued before October 31, 1990. As a result of this holding, it is now clear that there are no longer any limitations for damages in wrongful death of child cases.

 

Footnotes

1. Richey v. Chappell (1992), Ind., 594 N.E.2d 443, 445; Trial Rule 26(b)(1) of the Indiana Rules of Trial Procedure; Coleman v. Heidenreich (1978), 269 Ind. 419, 423, 381 N.E.2d 866, 869.

2. I.C.34-1-14-5 and I.C. 34-1-60-4.

3. Jenkinson v. State (1845), 5 Blackf. 465, 466.

4. (8th Cir. 1977), 560 F.2d 326, 337.

5. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1256.

6. Id., at 1257.

7. Id.

8. Richey v. Chappell (1992), Ind., 594 N.E.2d 443; Brown v. State (1983), Ind., 448 N.E.2d 10,

13-14; Bingham v. Walk (1881), 128 Ind. 164, 171, 27 N.E. 483, 486; Maas v. Bloch (1855), 7 Ind. 202.

9. Indiana State Board of Public Welfare v. Tioga Pines Living Center, Inc. (1992), Ind.App., 592 N.E.2d 1274, 1276-1277.

10. American Buildings Company v. Kokomo Grain Company, Inc. (1987), Ind.App., 506 N.E.2d 56, 62, citing In re Murphy (8th Cir.1977), 560 F.2d 334.

11. Trial Rule 26(B)(3) of the Indiana Rules of Trial Procedure; Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2nd 1250.

12. Trial Rule 26(B)(3) of the Indiana Rules of Trial Procedure; Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1254; Cigna-INA/Aetna v. Hagerman-Shambaugh (1985), Ind.App., 473 N.E.2d 1033, 1037.

13. Indiana State Board of Public Welfare v. Tioga Pines Living Center, Inc. (1992), Ind.App., 592 N.E.2d 1274, 1276, citing Burr v. United Farm Bureau Mutual Ins. Co. (1990), Ind.App., 560 N.E.2d 1250, 1254; American Buildings Co. v. Kokomo Grain Co. (1987), Ind.App., 506 N.E.2d 56, 62;

Cigna-INA/Aetna v. Hagerman-Shambaugh (1985), Ind.App., 473 N.E.2d 1033, all of which cited or quoted 8 Wright & Miller, Federal Practice and Procedure: Civil Sec. 2024 at 198 (1970).

14. Indiana State Board of Public Welfare v. Tioga Pines Living Center, Inc. (1992), Ind.App., 592 N.E.2d 1274, 1277.

15. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1254.

16. Richey v. Chappell (1991), Ind.App., 572 N.E.2d 1338, 1341, citing Burr v. United Farm Bureau Mut. Ins. Co. (1990), Ind.App., 560 N.E.2d 1250.

17. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1256, citing American Buildings Co. v. Kokomo Grain Co., Inc. (1987), Ind.App., 506 N.E.2d 56.

18. Burr v. United Farm Bureau Mutual Insurance Company, (1990), Ind.App., 560 N.E.2d 1250, 1255.

19. Richey v. Chappell (1991), Ind.App., 572 N.E.2d 1338, 1341.

20. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1254, citing Tarolis v. General Electric Co. (N.D.Ind.), 114 F.R.D. 97, 98, aff'd, (7thCir.1988), 840 F.2d 920.

21. Id.

22. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1254, citing Taroli v. General Electric Co. (N.D.Ind.1987), 114 F.R.D. 97, 98, aff'd (7th Cir.1988), 840 F.2d 920.

23. Indiana State Board of Public Welfare v. Tioga Pines Living Center, Inc. (1992), Ind.App., 592 N.E.2d 1274, 1278.

24. Burr v. Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1256, citing CIGNA-INA/Aetna v. Hagerman-Shambaugh (1985), Ind.App., 473 N.E.2d 1033 and American Buildings Co. v. Kokomo Grain Co., Inc. (1987), Ind.App., 506 N.E.2d 56.

25. Burr v. United Farm Bureau Mutual Insurance Company, (1990), Ind.App. 560 N.E.2d 1250, 1256.

26. American Buildings Company v. Kokomo Grain Company, Inc. (1987), Ind.App., 506 N.E.2d 56, citing CIGNA-INA/Aetna v. Hagerman-Shambaugh (1985), Ind.App., 473 N.E.2d 1033, 1037, quoting In re Grand Jury Investigation (1979), 3dCir., 599 F.2d 1224, 1229.

27. Richey v. Chappell (1991), Ind.App., 572 N.E.2d 1338, 1340; Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1255; American Buildings Company v. Kokomo Grain Company, Inc. (1987), Ind.App., 506 N.E.2d 56, 64.

28. Peterson v. U.S. Reduction Co. (1989), Ind.App., 547 N.E.2d 860, 862

29. Id.

30. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1256-1257.

31. State v. Hogan (1992), Ind.App., 588 N.E.2d 560, 563.

32. Burr v. United Farm Bureau Mutual Insurance Company (1990), Ind.App., 560 N.E.2d 1250, 1255.

33. Id.

34. 657 N.E.2d 745 (Ind.App. 1995).

35. 657 N.E.2d 1220 (Ind. 1995)

36. 658 N.E.2d 111 (Ind.App. 1995)

37. 659 N.E.2d 232, (Ind.App. 1995)

38. 660 N.E.2d 1079 (Ind.App. 1996)

39. 659 N.E.2d 1016 (Ind. 1995)

40. 659 N.E.2d 1081 (Ind.App. 1995)

41. 661 N.E.2d 907 (Ind.App. 1996)