Aparicio v. Baumann
Aparicio v. Baumann
Opinion of the Court
ORDER
This- is a case involving a motor vehicle accident in Reno, Nevada, that was filed in the Second Judicial District Court for the District of Nevada and removed to this court based on diversity jurisdiction under 28 U.S.C. § 1332 and 28 U.S.C. §§ 1441(a)-(c)(# 1). Now before the court is defendant’s motion to determine applicable law (# 16).
I. Background
This case concerns a March 3, 2011 accident that involved plaintiff Patricia Apari-cio (“plaintiff’), a Nevada resident, and defendant Urs Baumann (“defendant”), a Canadian who resides in British Columbia. According to defendant’s unopposed motion, a police officer took witness statements at the scene, including defendant’s statement. On March 16, 2011, defendant’s insurer, Insurance Company of British Columbia (“ICBC”) received correspondence from plaintiffs counsel advising that she was represented. Id. at 3.
On March 16, 2011, while home in British Columbia, defendant contacted ICBC. On March 22, 2011, ICBC sent its agent to defendant’s farm in British Columbia. The agent took defendant’s oral and written statement. Id. at 3-4.
Defendant argues that under British Columbia law, these statements are protected from discovery as work product because the doctrine or privilege is more expansive in Canada than in Nevada. Id. at 10. Defendant seeks an order declaring that the British Columbia privilege protects these statements from discovery in this lawsuit. Id. at 13.
A. Legal Standards
Federal Rule of Evidence 501 provides that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” The general rule is that a federal court sitting in diversity applies the choice of law rules of the state in which it sits. See, e.g., Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 782 (9th Cir. 1991). Thus, here, Nevada’s choice-of-law rules apply.
“Nevada generally applies the Second Restatement of Conflict of Laws’s “most significant relationship” test to tort actions, unless another, more specific section of the Second Restatement applies .... ” General Motors Corp. v. Dist. Ct., 122 Nev. 466, 134 P.3d 111, 116 (2006). Section 139, which addresses privileged communications, provides that:
Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.
Rest.2d Confl. § 139(2). In British Columbia, the work-produet privilege protects records that came into existence for the dominant purpose of preparing for, advising on, or conducting litigation that was under way or in reasonable prospect at the time the record was created. Hamalainen v. Sippola (1991) 62 B.C.L.R.2d 254 (BCCA). Non-attorneys may claim this privilege, and Canadian courts have routinely protected the type of communications at issue here from discovery. Id.; Romaniuk v. Prudential Insurance Co. of America, [2000] O.J. No. 1527, ¶ 20; Keirouz v. Co-Operators Insurance Assn. (1983), 39 C.P.C. 164, ¶¶ 5-7; [2002] B.C.I.P.C.D. No. 8.
The state with the most significant relationship with the communication at issue is usually the state where the communication took place. Rest.2d Confl. § 139, Comment e. A communication includes “an oral interchange between persons ... a written statement ... or an inspection ... of a person or thing.” Id. Where a prior relationship existed between the parties, the state of the most significant relationship usually will be where that relationship was centered. Id.
Whether a special reason not to apply the law of the forum exists depends on the consideration of four factors that are similar to the inquiry set forth in International Shoe Co. v. State of Wash., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945):
(1) The number and nature of the contacts that the state of the forum has with the parties and with the transaction involved;
(2) The relative materiality of the evidence that is sought to be excluded;
(3) The kind of privilege involved; and
(4) Fairness to the parties.
Rest.2d Confl. § 139.
B. Analysis
The court finds that British Columbia has the most significant relationship to the written and oral statements that defendant gave to his insurer, ICBC. As set forth in defendant’s unopposed motion, the statements took place in British Columbia between defendant, a citizen of British Columbia, and ICBC, his insurer and an insurance company in British Columbia. Moreover, the insurance contract was entered into in British Columbia, which is where defendant resides and where ICBC conducts its business.
Accordingly, this motion is construed as a motion for protective order with respect to the written and oral statements regarding the auto collision at issue that defendant made to ICBC on March 22, 2011, and it is GRANTED. Based on the work product privilege as it is applied in British Columbia, defendant shall not be required to produce the above-described statements to plaintiffs.
IT IS SO ORDERED.
. Refers to the court’s docket number.
Reference
- Full Case Name
- Patricia APARICIO v. Urs BAUMANN
- Cited By
- 1 case
- Status
- Published