                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                  ___________

                                  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                                      * [UNPUBLISHED]
                                  __________

                         Submitted: September 12, 2001
                             Filed: November 19, 2001
                                  __________

Before MORRIS SHEPPARD ARNOLD and BRIGHT, Circuit Judges, and
BOGUE,1 District Judge.
                        _________

PER CURIAM.




      1
        The Honorable Andrew W. Bogue, United States Senior District Judge for the
District of South Dakota, sitting by designation.
       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


      2
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
                                           2
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).



                                           3
       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.




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