United States District Court, D. Connecticut
ITT CORPORATION ET AL.
TRAVELERS CASUALTY & SURETY CO.
RULING FOLLOWING IN CAMERA REVIEW OF WIGMORE
Glazer Margolis, United States Magistrate Judge
factual and procedural history behind this litigation is set
forth in considerable detail in this Magistrate Judge's
Ruling on Pending Discovery Issues, filed January 27, 2017
(Dkt. #191)[“January 2017 Discovery Ruling”],
2017 WL 385034, and Ruling on Pending Discovery Issues
Regarding Depositions, filed February 14, 2017 (Dkt. #202).
the issues raised in the January 2017 Discovery Ruling was
Travelers' withholding production of the “Wigmore
Memo, ” as addressed in Section II(C), 2017 WL 385034,
at *4-6. As discussed therein, the Wigmore Memo was
“central to . . . litigation” in the Eastern
District of Pennsylvania and the Third Circuit, Travelers Cas.
& Surety Co. v. Insurance Co. of North America, 609 F.3d
143, 152 (3d Cir. 2010)[“INA”]. The Wigmore Memo
was commissioned by Timothy Yessman, Senior Vice President of
Travelers' Special Liability Group, and drafted by Mark
Wigmore, its Vice-President and Associate General Counsel of
the reinsurance department, exploring “the reinsurance
implications of different coverage scenarios for the breast
implant claims” submitted under an XN policy.
Id. at 151-52; 2017 WL 385034 at *4. The Wigmore
Memo had been an exhibit at trial and was discussed by
Yessman and Wigmore in their trial testimony, and its
contents were summarized by the Third Circuit in its ruling.
Id. at 152-53 & n.16, 163-64. See also
2017 WL 385034, at *4.
evaluating defendant's claims that the Wigmore Memo is
protected by the attorney-client privilege and the attorney
work product doctrine, the January 2017 Discovery Ruling
found that Travelers failed to establish the basis for a
privilege claim despite being asked to do so by both Judge
Meyer and this Magistrate Judge and having multiple
opportunities to do so. 2017 WL 385034, at *4-5. However, the
ruling continued: “in an abundance of caution, the
Magistrate Judge orders an in camera review of this
single document before ordering production thereof to
plaintiffs. Defendant shall provide a copy of the Wigmore
Memo on or before February 13, 2017.” Id. at
*6 (emphasis omitted).
February 13, 2017 Travelers forwarded a letter to this
Magistrate Judge with three exhibits, including a copy of the
Wigmore Memo, and specifically cautioned that it is
“not voluntarily provid[ing the Wigmore Memo] for
in camera review, but rather does so solely to abide
by” the January 2017 Discovery Ruling. (February 13
Letter at 2). The exhibits consisted of a copy of the Wigmore
Memo with the name of the insured redacted (Exh. A); copies
of excerpts from the docket sheets of the Third Circuit and
Eastern District of Pennsylvania, sealing their records in
the INA litigation and denying plaintiff ITT's
motion to unseal them (Exh. B); and copies of declarations of
Vincent J. Proto, executed October 4, 2014 and December 5,
2014 (Exh. C), which previously were filed in this lawsuit.
(Dkts. ##118-3, 127-1).
to Attorney Proto, whose law firm represented Travelers in
the INA litigation, both in the Eastern District of
Pennsylvania and before the Third Circuit, the Wigmore Memo
was listed on Travelers' privilege log; after an in
camera review, a court-appointed Special Master ordered
production of the document over Traveler's objection,
without finding that Travelers had waived its privileges;
Travelers complied with the Special Master's ruling and
involuntarily produced the Wigmore Memo to INA; INA argued at
trial that the Wigmore Memo was “direct evidence”
that Travelers had allocated the underlying settlement
“with an eye toward maximizing its reinsurance
recovery[, ]” but the district court and the Third
Circuit rejected that characterization; Attorney Proto's
law firm has continued to treat the Wigmore Memo as a
confidential, privileged document; and the district court and
Third Circuit have sealed the court records. (Proto Decl.,
dated December 5, 2014, ¶¶ 1, 3-12).
conducted a careful in camera review of the Wigmore
Memo, this judicial officer agrees that under usual
circumstances, the memo would be found to be privileged. The
Magistrate Judge recognizes, as argued by defendant, that as
a general rule, a party does not waive the attorney-client
privilege for documents which it is compelled to produce.
See, e.g., Transamerica Computer Co., Inc. v. Int'l
Bus. Mach. Corp., 573 F.3d 646, 651 (9th Cir. 1978);
Pierrello v. Gateway Marina, No. 08 CV 1798
(KAM)(MDG), 2010 WL 9506732, at * 1 (E.D.N.Y. Aug. 19, 2010),
citing Transamerica. However, the contents of the
memo have been discussed extensively by the Third Circuit in
its decision in INA, 609 F.3d at 152-53, 163-64,
despite the fact that two months after the decision was
filed, the Third Circuit sealed the entire
record. The Third Circuit decision quoted several
times from the Wigmore Memo (in that it was admitted into
evidence as an exhibit), and summarized Yessman's
testimony regarding the purpose of the memo, namely “to
provide him with a general estimate of Travelers'
potential net exposure on the breast implant claims, which
Travelers wanted in relation to an indemnity agreement it had
entered into with Aetna. . . .” Id. The
excerpt of the Wigmore Memo provided for the in
camera review has six parts: Section II.D., III.E,
III.E.1, III.E.2, III.E.3, and III.E.4. Four of these
sections - III.E, III.E.1, III.E.2, and III.E.3 - were
discussed in some detail in the Third Circuit's ruling.
Thus, despite Travelers' continuing designation of the
Wigmore Memo as confidential, and its continuing efforts to
maintain it as a privileged document, the exhaustive
discussion of it by the Third Circuit makes it impossible to
consider it as such. The Wigmore Memo was admitted as a trial
exhibit; at least two of Travelers' executives testified
regarding it, including the Vice President and Associate
General Counsel who drafted it; and the Third Circuit
extensively quoted from the memo and summarized testimony
about it, all of which appears in a published court ruling.
As such, key elements of the Wigmore Memo are easily found in
the public domain. Therefore, under these extremely unusual
circumstances, defendant Travelers shall produce a copy of
the four sections of the Wigmore Memo addressed by the Third
Circuit in the INA decision (Sections III.E,
III.E.1, III.E.2, and III.E.3) to plaintiffs' counsel,
for attorney's eyes only (unless otherwise ordered by
the Court), and subject to the following redactions -
Travelers may continue to redact out the name of its insured,
and if it wishes, may also redact out all dollar figures and
percentages in the memo, but will otherwise leave in the text
portions, which address various scenarios for interpreting
the XN coverage, as discussed by the Third Circuit in the
not a Recommended Ruling, but a ruling on a non-dispositive
motion, the standard of review of which is specified in 28
U.S.C. § 636; Fed.R.Civ.P. 6(a) & 72; and Rule 72.2
of the Local Rules for United States Magistrate Judges. As
such, it is an order of the Court unless reversed or modified
by the District Judge upon timely made objection.
28 U.S.C. § 636(b)(written objections to ruling must be
filed within fourteen calendar days after service of same);
Fed.R.Civ.P. 6(a) & 72; Rule 72.2 of the Local Rules for
United States Magistrate Judges, United States District Court
for the District of Connecticut; Impala v. United States
Dept. of Justice, No. 15-3055, 2016 WL 6787933 (2d Cir.
Nov. 15, 2016)(summary order)(failure to file timely
objection to Magistrate Judge's recommended ruling will
preclude further appeal to Second Circuit); cf. Small v.
Sec'y, H&HS, 892 F.2d 15, 16 (2d Cir.
1989)(failure to file timely objection to Magistrate
Judge's recommended ruling may preclude further appeal to
The decisions by the U.S. District
Court for the Eastern District of Pennsylvania apparently
were never published after the two bench trials.
The February 13, 2017 letter, with
attachments, shall remain in this Magistrate Judge's
Chambers, and will be filed under seal, only if
The Third Circuit's ruling was
filed on June 9, 2010, but the entire file was not sealed
until more than two months ...