Discovery

COURT DENIES MOTION TO COMPEL PRODUCTION OF DOCUMENTS RELATING TO REINSURANCE COVERAGE

November 13, 2014 by Carlton Fields

A federal district court has denied that part of an insured’s motion seeking to compel the insurer to produce all documents relating to its reinsurance coverage. The court ordered the production of the reinsurance agreements themselves, but found the request for all other reinsurance information was “plainly too broad.” The court also recognized the possible application of the common interest doctrine to the communications between the insurer and its reinsurer to support the denial. As to the other documents sought, the court granted that part of the motion seeking documents relating to certain drafting history of the insurance policy at issue, but denied the remaining part of the motion to compel, which sought documents ranging from the insurer’s personnel files for all personnel involved in the claim to the insurer’s loss reserve information. Harleysville Lake States Ins. Co. v. Lancor Equities, Ltd., No. 13-CV-6391 (USDC N.D. Ill. Oct. 31, 2014).

This post written by Renee Schimkat.

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FEDERAL COURT REFUSES TO ENFORCE ARBITRATOR’S SUBPOENA DUCES TECUM TO NON-PARTY

October 27, 2014 by Carlton Fields

A United States district court in Louisiana recently dismissed a suit brought under the Federal Arbitration Act to enforce a subpoena duces tecum issued in an arbitration proceeding. The district court granted the defendant’s motion to dismiss on two grounds. First, the court held that the amount in controversy requirement for diversity jurisdiction was lacking because the plaintiffs were asserting no claim against the defendant in the federal court action; the plaintiffs sought only the production of discovery documents. Second, the court ruled that Section 7 of the FAA provides for the enforcement of a subpoena duces tecum against a non-party only if the non-party is compelled to testify as a witness before the arbitrator. Because the defendant was not summoned to testify in the arbitration proceeding, the subpoena duces tecum was unenforceable. Chicago Bridge & Iron Co. N.V., et al. v. TRC Acquisition, LLC, No. 14-1191, 2014 WL 3796395 (E.D. La. July 29, 2014).

This post written by Catherine Acree.

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SPECIAL FOCUS: IS IT STILL PRIVILEGED?

October 21, 2014 by Carlton Fields

We previously reported on the decision in Progressive Casualty Ins. Co. v. FDIC, where the federal district court rejected claims of privilege, work product, and the common interest doctrine to certain information disclosed by an insurer to its reinsurers and broker. In a Special Focus article titled “IS IT STILL PRIVILEGED? AN INSURER’S DISCLOSURE OF INFORMATION TO ITS REINSURERS AND BROKERS WAIVES PRIVILEGE … SOMETIMES,” Renee Schimkat discusses Progressive Casualty (including another more recent order in that case) and other decisions where courts have considered whether the disclosure of information between these three parties waives applicable privileges.

This post written by Renee Schimkat.
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NEW YORK STATE COURT APPROVES CONFIDENTIALITY AGREEMENT

September 10, 2014 by Carlton Fields

A New York state court approved a stipulation entered into among the parties in a reinsurance dispute which set forth the terms and conditions upon which the parties agreed produce and exchange confidential and/or proprietary documents and information. The agreement permitted the parties to designate documents and information as confidential and thereby restrict their use and dissemination outside the scope of the litigation. Granite State Insurance Co. v. R&Q Insurance Co., Index No. 654494/2013 (N.Y. Sup. Ct. Aug. 4, 2014).

This post written by Leonor Lagomasino.

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COURT REJECTS CLAIMS OF PRIVILEGE, WORK PRODUCT, AND THE COMMON INTEREST DOCTRINE TO REINSURANCE INFORMATION

September 9, 2014 by Carlton Fields

In a discovery dispute between insurer Progressive and the FDIC, as receiver of the insured bank, a federal district court has rejected all claims of attorney-client privilege and work product protection to reinsurance information the court had previously directed Progressive to produce. As reported here, the court had compelled Progressive to produce certain reinsurance information to the FDIC, including communications with its reinsurers regarding potential coverage of the FDIC’s lawsuit against the bank’s directors and officers. Progressive then redacted portions of the communications on the grounds of attorney-client privilege and/or protected work product. The FDIC challenged both grounds. The court first found that the reinsurance information was not protected by work product because the information was created in the ordinary course of business and not “prepared or obtained because of the prospect of litigation.” The court then found that even if the documents contained attorney-client communications, any privilege was waived when Progressive voluntarily disclosed the documents to its reinsurers and broker. Progressive had argued that the common interest doctrine applied to the communications and, therefore, the attorney-client privilege was preserved. The court disagreed, finding the doctrine applied only when the parties shared a common legal interest, not a commercial or financial one. Further, there was no evidence establishing a joint strategy or legal enterprise, which is “central” to the common interest doctrine.

The court did reject the FDIC’s other claims as to alleged deficiencies in Progressive’s production, including Progressive’s failure to produce electronically stored information because Progressive was never previously required to retrieve it. Finally, the court rejected all of the reinsurer’s arguments that it need not comply with the FDIC’s subpoena for documents, including those of privilege, undue burden, and relevance. Progressive Casualty Ins. Co. v. FDIC, Case No. 12-CV-04041 (USDC N.D. Iowa Aug. 22, 2014).

This post written by Renee Schimkat.

See our disclaimer.