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Discovery

COURT AFFIRMS DENIAL OF MOTION TO COMPEL CEDANT TO DISCLOSE ATTORNEY-CLIENT COMMUNICATIONS

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A New York appellate court summarily affirmed the denial of the reinsurers’ motion to compel the cedant to disclose attorney-client communications. The court referred to its prior decision, American Re-Insurance Co. v. United States Fid. & Guar. Co., which held that the reinsurers could seek testimony and the production of documents concerning attorney-client communications on the presentation of the reinsurance claim, but only to the extent that the discovery related to disclosures made by one person at a deposition. In the prior decision, the reinsurers argued for a broad subject matter waiver, however, the cedant did not intend to advance an “advice of counsel” defense, and the court thus determined that waiver did not need to be expanded. United States Fid. & Guar. Co. v. Excess Cas. Reins. Assoc., Case No. 2009-09076 (N.Y. App. Div. Dec. 8, 2009).

This post written by Dan Crisp.

COURT DENIES MOTION TO ORDER DEPOSITION IN CHICAGO FOR USE IN A PRIVATE, FOREIGN ARBITRATION

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In connection with a train derailment in Graniteville, South Carolina, Norfolk Southern Corp., Norfolk Southern Railway Co., and General Security Insurance Co. (collectively, “movants”) sought an order to require the deposition in Chicago of the former counsel to ACE Bermuda Ltd. for use in a private arbitration in England. The movants claimed that 28 U.S.C. Section 1782 allowed the Illinois district court to order such a deposition, however, Section 1782 does not explicitly address private arbitrations. In denying the motion, the court interpreted the reference to “arbitral tribunals” in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), to include state-sponsored arbitrations but exclude purely private arbitrations and the court agreed with pre-Intel circuit court decisions that Section 1782’s legislative history did not support the inclusion of private arbitral tribunals within the scope of the statute. In re Norfolk S. Corp., Case No. 09-3092 (USDC N.D. Ill. June 15, 2009).

This post written by Dan Crisp.

NO JUMPING THE GUN ON DISCOVERY: MOTION TO COMPEL REINSURANCE AGREEMENT DENIED

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The plaintiff, Dartmouth Hitchcock Medical Center, moved to compel the defendant, CHG Medical Staffing, to produce a reinsurance agreement between CHG and CNA. In support of its motion, Dartmouth represented that the court had ordered CHG to produce insurance policies during a hearing in a related case. CHG refused to produce the agreement on the ground that discovery has not yet begun, citing the automatic discovery moratorium imposed by Federal Rule of Civil Procedure 26(d). Dartmouth argued in its Motion to Compel Production of Documents that CHG is in violation of the “intent and spirit of this Court’s Order, if not the letter.” The court found in favor of CHG, noting that because the parties agreed that the court did not order production of the reinsurance agreement, CHG’s refusal to produce it did not violate an existing court order and that discovery would progress in accordance with the Federal Rules. Dartmouth Hitchcock Medical Center v. Cross Country Travcorps, Inc., Case No. 09-160 (USDC D.N.H. July 31, 2009).

This post written by Brian Perryman.

COURT HAS SECOND THOUGHTS ON DOCUMENT PRODUCTION

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In our January 7 post this year, we last told you about the discovery battles in AIU Insurance Company v. TIG Insurance Company, 07-7052 (USDC S.D.N.Y. Nov. 25, 2008), which we described as a “saga.” The saga continues. This time, the court reconsidered its August 28, 2008 order directing the production by TIG of information pertaining to its late notice investigation and records audit (which we discussed in a October 2, 2008 post). TIG moved for reconsideration of 25 of the documents ordered produced. The court found it had overlooked the factual bases for attorney-client privilege. Accordingly, the court entered an Order excusing TIG from producing some documents in their entirety, and permitting it to redact others.

This post written by Brian Perryman.

COURT GRANTS LIMITED PRE-ARBITRATION DISCOVERY OF NON-PARTY

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A New York State Court allowed the issuance of judicial subpoenas to non-parties at the request of Petitioner corporations in a pre-arbitration discovery action. The Petitioners and Respondents had agreed to arbitrate under FINRA rules, but the arbitration had not yet commenced, as Petitioners sought discovery to determine if other parties should be joined in the arbitration.

The Court noted that FINRA provides a comprehensive discovery scheme, and allows for the issuance of arbitral subpoenas, but is ambiguous as to pre-arbitral discovery. The Court also noted a general judicial reluctance to order discovery where the parties have agreed to arbitrate, but ruled that it was nonetheless appropriate for the limited purpose of determining whether any other parties exist that should be brought into the arbitration. VP Trader Pro, LLC v. Joseph Azevedo Pires, No 102334-09 (N.Y. Sup. Ct. April 21, 2009).

This post written by John Pitblado.