           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 1, 2009

                                     No. 08-10814                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk




RANDAL CROSSWHITE

                                           Plaintiff - Appellant

v.

LEXINGTON INSURANCE COMPANY

                                           Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:07-CV-119


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
       This appeal concerns a claim filed by Randal Crosswhite against Lexington
Insurance Company (“LIC”) for tortious interference of Crosswhite’s contract of
employment with Rentech Boiler Systems, Inc. (“Rentech”). In short, Crosswhite
alleges that LIC improperly influenced Rentech, its insured, to place Crosswhite
on unpaid leave—a move that ultimately led to his resignation—because of his

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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confidential position with Rentech and close relation to two individuals (his wife
and stepson) who were suing Rentech in a separate case at the time. The district
court granted summary judgment to LIC based largely on Crosswhite’s inability
to offer evidence to support his claim. Crosswhite concedes a lack of evidence,
but blames it on the district court’s refusal to require LIC to produce its claims
file on the action involving Crosswhite’s relatives. Given that Crosswhite’s only
challenge on appeal is to this discovery order—as opposed to the existence of any
other evidence in his favor—and that such orders are reviewed with deference,
we affirm the district court’s discovery order and entry of judgment for LIC.
                        FACTS AND PROCEEDINGS
      Rentech hired Crosswhite in 2001. During his employ, Crosswhite served
as Rentech’s vice president and chief financial officer. In August 2006, Rentech
put Crosswhite on unpaid leave for an indefinite period. Rentech’s stated reason
was a conflict of interest because Crosswhite held a job with access to Rentech’s
sensitive financial information while his stepson, Preston Teel, and his wife,
Lesa Crosswhite, were suing Rentech in a separate lawsuit. The relatives’ action
involved a serious work accident in 2005 involving Teel, who also worked for
Rentech. It was first filed in February 2006, sought at least $10 million in relief,
and was pending at all relevant times.        In January 2007, Crosswhite and
Rentech entered into an agreement that permanently terminated Crosswhite’s
employment and exchanged a lump sum severance payment for a release. The
release did not include LIC.
      In April 2007, Crosswhite filed this action against LIC in state court. LIC
promptly removed. In his complaint, Crosswhite alleges that LIC, which insured
Rentech at various times, arranged to have Crosswhite put on unpaid leave in

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August 2006 to induce his wife and/or stepson to drop their action. Crosswhite
claims that LIC’s actions constituted tortious interference with his employment
contract and that LIC was therefore responsible for his August 2006 leave and
termination five months later.
      After a period of discovery, LIC filed a motion for summary judgment. LIC
asserted that Crosswhite’s claim fails because: 1) there was no evidence of willful
or intentional interference, 2) LIC denied indemnity to Rentech on the relatives’
action and withdrew defense coverage in that case months before Rentech put
Crosswhite on leave, and 3) there was no admissible evidence that LIC’s conduct
caused damage to Crosswhite given his negotiated severance agreement, or that
Crosswhite was damaged in light of that agreement. In a two-page response to
LIC’s motion, Crosswhite offered no evidence, but simply professed an inability
to respond in light of the district court’s refusal to compel production of LIC’s
claims file on his relatives’ case. Crosswhite then argued that, due to a lack of
access to the claims file, he “has no choice but to allow the motion for summary
judgment to go uncontested so [he] can appeal the court’s order denying [his]
motion to compel discovery.”
      The district court granted LIC’s motion for summary judgment on July 28,
2008. The district court found that “[b]y [Crosswhite’s] failing to come forward
with even so much as an affidavit or citations to his own deposition in an effort
to create a genuine issue of material fact, [LIC]’s evidence and arguments go
without rebuttal.” As to the claims file in his wife and stepson’s case, on May 20,
2008, the court denied Crosswhite’s motion to compel and granted LIC’s motion
for a protective order covering that file and related information on a declaratory
judgment action for insurance coverage of the relatives’ case. The court’s May

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20, 2008 order did not detail its reasoning, only that it “consider[ed] all relevant
arguments and evidence.” The district court did, however, make an exception
for information not “protected by legal privileges” “to the extent it concerns . . .
Crosswhite’s employment issues with [Rentech].” In seeking protection of non-
employment information from the collateral actions, LIC had argued that the
materials were covered by the work-product doctrine or attorney-client privilege,
and, in support, provided a detailed privilege log. As to good cause in support
of the protective order, LIC cited the unfair advantage Crosswhite’s relatives
would gain and the prejudice LIC would suffer in the then-pending actions. For
his part, Crosswhite argued that the information sought was “necessary” for him
to prepare his case because his “claims relate directly to conduct engaged in by
[LIC] . . . in connection with the defense” of the relatives’ action.
      On appeal, Crosswhite does not actually appeal the district court’s grant
of summary judgment. Rather, his sole point of error is that “[t]he trial court
erred in not requiring [LIC] to produce its claims file in the state court litigation
involving Lesa Crosswhite and Preston Teel.”
                           STANDARD OF REVIEW
      This court reviews grants of summary judgment de novo. Ford Motor Co.
v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment
is proper “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
This court “may affirm summary judgment on any legal ground raised below,
even if it was not the basis for the district court’s decision.”        Performance
Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).

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      Notwithstanding its de novo review of summary judgment on the whole,
this court reviews discovery orders for abuse of discretion—a fact both parties
concede. “The district court has broad discretion in discovery matters and its
rulings will be reversed only on an abuse of that discretion.” Scott v. Monsanto
Co., 868 F.2d 786, 793 (5th Cir. 1989). Because the only ground raised on appeal
by Crosswhite concerns the district court’s refusal to allow discovery of certain
collateral case information, we review this appeal for abuse of discretion. See
Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982) (reviewing protective
order under abuse of discretion standard). Crosswhite concedes judgment in the
absence of the information at hand, while remand—and not reversal and entry
of judgment—would be necessary if we were to find the information discoverable,
because it is not yet in the record.
                                 DISCUSSION
      The Federal Rules of Civil Procedure provide, “[u]nless otherwise limited
by court order, . . . [p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense . . . .” F ED. R. C IV. P.
26(b)(1). Nevertheless, the Rules also provide that “[o]rdinarily, a party may not
discover documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative (including the
other party’s attorney . . . insurer, or agent).” Id. at 26(b)(3)(A). A party may
move to compel production of materials that are within the scope of discovery
and have been requested but not received. F ED. R. C IV. P. 37(a). Yet, a court
may decline to compel, and, at its option or on motion, “may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden . . ., including . . . forbidding inquiry into certain

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matters, or limiting the scope of disclosure or discovery to certain matters.” F ED.
R. C IV. P. 26(c)(1)(D); see also F ED. R. C IV. P. 37(a)(5)(B). The grounds for a
protective order can include privileged or work-product material, but can also
include the improper sharing of confidential information between litigants in
separate cases. See Scott, 868 F.2d at 792.
      Based on our review of the privilege log, there appear to be three different
sets of materials at issue. The first consists of documents dated from January
2001 to September 2004, which largely concern claims investigator “evidence.”
The second set consists of documents dated from June 2005 to October 2005,
which concern coverage of a “claim”; the injury to Crosswhite’s stepson that gave
rise to the collateral legal action occurred on June 3, 2005. The third set consists
of documents dated February 2006 to November 2007, which concern the “case”
and its underlying claim; the relatives’ action was first filed on February 6, 2006.
      Turning to the first set of materials—i.e., from January 2001 to September
2004—their nature is unclear. They do not seem to concern the relatives’ action
in any direct sense, particularly given that they pre-date Teel’s injury.          It
appears unlikely that they would be considered part of the relatives’ “claims
file”—i.e., the target of the motion to compel and protective order—in any event.
Nevertheless, because neither party briefed the question, either on appeal or in
the district court, we decline to address the issue here. See F ED. R. A PP. P. 28(a)
(providing briefing requirements). The parties assume that the only materials
at issue are those concerning the “defense of the [relatives’] case,” as Crosswhite
puts it in his brief. Even if we were to independently review these materials, we
cannot hold that the protective order, which covers “the insurance adjuster claim
files” but excludes information “concern[ing] . . . Crosswhite’s employment issues

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with his former employer,” constitutes an abuse of discretion. See United States
v. Garrett, 571 F.2d 1323, 1326 (5th Cir. 1978) (“[E]rrors made with regard to the
allowance of discovery do not require reversal unless they result in substantial
prejudice to a party’s case.”). Crosswhite was still free to inquire, whether from
the documents at issue or alternative discovery, into materials with legitimate
connections to his claim of employment interference.
      As to the second and third sets of materials in the log—i.e., from June
2005 to October 2005 and February 2006 to November 2007—these are coverage
and litigation materials, respectively. As to coverage, the work-product doctrine
can cover insurers in their investigative roles, see F ED. R. C IV. P. 26(b)(3)(A), and
given the nature of the case—coverage of the crushing of a child laborer’s hands
while cleaning a dangerous machine—expectation of litigation was reasonable.
See Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991) (work-
product doctrine applies if there was “a solid basis to question [the plaintiff’s]
insurance claim”). As to the litigation documents, a more clearly protected area
of work product could scarcely be found given that, by their nature, these are
materials “prepared in anticipation of litigation.” F ED. R. C IV. P. 26(b)(3)(A). An
open question, and one which occupies the bulk of the parties’ briefs is whether
such work-product protection extends to the present case. Yet, it is unnecessary
to resolve this issue because we conclude, for the reasons stated above, that the
district court’s order does not constitute an abuse of discretion in any event. See
Sanders, 678 F.2d at 618 (“A trial court enjoys wide discretion in determining
the scope and effect of discovery . . . [i]t is, in fact, unusual to find an abuse of
discretion in discovery matters.”); see also Scott, 868 F.2d at 792 (“Even when
based on a conclusory statement of cause, discovery orders . . . are rarely

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reversed for an abuse of discretion.”). The protective order permits inquiry into
the employment-related matters at issue in Crosswhite’s complaint and excludes
only privileged materials or those that are unrelated to his employment and
would provide an undue advantage to related adversaries of LIC in an unrelated
case.
        In sum, because of the prospect of undue advantage involved and the fact
that relevant, non-privileged, employment-related materials were still fair game,
we conclude that the district court did not abuse its discretion in denying the
motion to compel and issuing the protective order.
                                CONCLUSION
        For the reasons stated above, we AFFIRM the district court’s discovery
order and grant of summary judgment to LIC.




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