United States District Court, D. Connecticut
PUBLIC SERVICE INSURANCE CO.
MOUNT VIEW REALTY, LLC., et al.
ORDER RE: MOTION TO COMPEL RESPONSES TO REQUESTS FOR
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
before the Court is a motion to compel filed by defendant
Mount View Realty, LLC. (“Mount View”),
requesting production of documents and more responsive
answers to certain interrogatories. See Doc. #66. This ruling
is limited to the request for production of documents; the
interrogatories will be addressed in a separate ruling. For
the reasons set forth below, Mount View's Motion to
Compel [Doc. #66] is hereby GRANTED, in part, as to the
production of documents.
View has moved to compel production of documents withheld by
plaintiff Public Service Insurance Co. (“PSIC”)
pursuant to claims of both the attorney-client privilege and
the work product privilege. PSIC provided a privilege log as
required by Federal Rule of Civil Procedure 26(b)(5). After a
conference on the record with counsel on September 2, 2016,
the Court requested that PSIC provide the withheld documents
to the Court for in camera review. The Court has now reviewed
Court first addresses the two entries in the privilege log
marked “Attorney/Client Privilege.”
party invoking the attorney-client privilege must show (1) a
communication between client and counsel that (2) was
intended to be and was in fact kept confidential, and (3) was
made for the purpose of obtaining or providing legal
advice.” In re County of Erie, 473 F.3d 413, 419 (2d
Cir. 2007)(citing U.S. v. Const. Prod. Research, 73
F.3d 464, 473 (2d Cir. 1996)).
entries marked “Attorney/Client Privilege” bear
the same date, April 28, 2015,  and are listed in the log as
correspondence between PSIC and Attorney John Donovan at
Sloane and Walsh, LLP, regarding a “disputed insurance
claim.” Although PSIC did not expressly claim in its
privilege log either that the communications were intended to
be and were kept confidential, or that the purpose of the
communication was obtaining or providing legal advice, it is
reasonable to infer under the circumstances that those
requirements are met. Attorney John Donovan and Sloane and
Walsh, LLP, are litigation counsel for PSIC in this case. The
complaint was filed on May 18, 2015. These communications
occurred within the context of litigation and are protected
by attorney-client privilege. Accordingly, with respect to
those documents, Bates numbers 000001 and 000272, Mount
View's motion is denied.
Work Product Privilege
other entries in PSIC's privilege log are claims of
protection under the “Work Product Privilege.”
The work product privilege provides that generally, “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.” Fed.R.Civ.P.
26(b)(3). The privilege applies to any “materials
obtained or prepared ... with an eye toward
litigation.” Hickman v. Taylor, 329 U.S. 495,
511 (1947). However, this protection does not “require
the exclusion from evidence of all records which were made
with some contemplation that they might be valuable in the
event of litigation.” U.S. v. New York Foreign
Trade Zone Operators, 304 F.2d 792, 797 (2d Cir. 1962).
Only documents created “because of anticipated
litigation” may be protected by work product privilege.
U.S. v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998).
Records and materials prepared in the ordinary course of
business, or those which would have been “prepared in a
substantially similar form” even without anticipation
of litigation are not protected. MSF Holding Ltd. v.
Fiduciary Trust Co. Int'l, No. 03CV1818, 2005 WL
3046287 *1 (S.D.N.Y., Nov. 10, 2005) (citing Adlman, 134 F.3d
insurance business, not all claim investigation is conducted
“because of” anticipated litigation. Indeed,
“it is the routine business of insurance companies to
investigate and evaluate claims.” AIU Ins. Co. v.
TIG Ins. Co., No. 07CV7052(SHS)(HBP), 2008 WL 4067437,
at *12 (S.D.N.Y. Aug. 28, 2008), modified on reconsideration,
No. 07CV7052(SHS)(HBP), 2009 WL 1953039 (S.D.N.Y. July 8,
2009). “An insurer's decision to decline coverage
is typically the point at which the ordinary course of
business ends and the anticipation of litigation
begins.” Tudor Ins. Co. v. McKenna Assocs.,
No. 01CV0115(DAB)(JCF), 2003 WL 21488058, at *3 (S.D.N.Y.
June 25, 2003). However, because “the very business of
the producing party is to evaluate claims that may ultimately
ripen into litigation[, ]” the determination of what is
prepared because of litigation is fact-specific. See QBE
Ins. Corp. v. Interstate Fire & Safety Equip. Co.,
No. 3:07CV01883(SRU), 2011 WL 692982, *3 (D. Conn. Feb. 18,
2011) (quoting Weber v. Paduano, No. 02CV3392(GEL),
2003 WL 161340 (S.D.N.Y. Jan. 22, 2003)).
This is not to say that the work product doctrine may not
properly be invoked as to a claim-related document created by
an insurance company. In the context of insurance company
cases it has been recognized that at a certain point an
insurance company's activity shifts from the ordinary
course of business to anticipation of litigation. The
relevant inquiry is when the insurance company shifted its
focus from collecting information and evaluating a claim to
preparation for a lawsuit.
Selective Ins. Co. of Am. v. Swarey, No. 07CV6324,
2011 WL 240750, at *2 (W.D.N.Y. Jan. 24, 2011) (internal
quotation marks and citations omitted).
case, PSIC commissioned a report by Cotter Engineering, Inc.,
regarding the cause of the loss at issue. That report is
dated March 13, 2015. A copy of the report was produced by
PSIC in discovery and bears a date stamp of March 24, 2015,
which appears to be the date on which it was received by
PSIC. However, the withheld documents reviewed by the Court
in camera reveal that PSIC did not immediately decide to
decline coverage after receipt of the report, and did not
immediately anticipate that litigation would ensue. Rather,
PSIC appears to have evaluated the engineering report and
determined that coverage would be disputed -- thus signaling
the anticipation of litigation -- in discussions occurring
between April 23, 2015, and April 27, 2015. On April 27,
2015, PSIC made a referral to “coverage counsel”
to assist it in determining how to proceed, including,
potentially, denial of the claim.
the Court concludes that PSIC became aware of the potential
for commencement of an adversarial proceeding, and thereby