SM 10000 Property, LLC, a Delaware limited liability company et al v. Allianz Global Risks US Insurance Company, an Illinois corporation
Filing
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ORDER by Judge Laurel Beeler. In the attached order, the court addresses the parties' discovery dispute at ECF No. 55 . (lblc2S, COURT STAFF) (Filed on 10/13/2020)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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San Francisco Division
United States District Court
Northern District of California
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SM 10000 PROPERTY, LLC, et al.,
Case No. 19-cv-03054-PJH (LB)
Plaintiffs,
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DISCOVERY ORDER
v.
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Re: ECF No. 55
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ALLIANZ GLOBAL RISKS US
INSURANCE COMPANY,
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Defendant.
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This case involves the extent of Allianz’s responsibility under the parties’ insurance contract
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for the delay that resulted from an accident at the plaintiffs’ construction contract.1 The parties
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have three disputes: (1) whether the attorney-client privilege protects withheld documents
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reflecting advice from outside counsel about Allianz’s obligations under the policy; (2) whether
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the privilege extends to internal communications that do not include a lawyer; and (3) whether the
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privilege log adequately establishes that Allianz can withhold documents as confidential and
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proprietary.2 The court can decide the matter without oral argument. Civ. L. R. 7-1(b).
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Compl. – ECF No. 1-1 at 33 (¶ 8), 35–36 (¶¶ 14–16); Discovery Order – ECF No. 48 at 1. Citations
refer to material in the Electronic Ce File (“ECF”); pinpoint citations are to the ECF-generated page
numbers at the top of documents.
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Disc. Letter Br. – ECF No. 55.
ORDER – No. 19-cv-03054-PJH (LB)
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First, the case is in federal court predicated on diversity jurisdiction, and state law applies:
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“Pursuant to Federal Rule of Evidence 501, attorney-client issues in diversity cases are substantive
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and thus controlled by the forum state’s law.” Great Am. Assur. Co. v. Liberty Surplus Ins. Co.,
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669 F. Supp. 2d 1084, 1090 (N.D. Cal. 2009). The communications are privileged because
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Allianz’s lawyers were giving legal advice regarding Allianz’s insurance obligations. Aetna Cas.
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& Sur. Co. v. Super. Ct., 153 Cal. App. 3d 467, 476 (1984). “The party claiming the privilege has
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the burden of establishing the preliminary facts necessary to support its exercise, i.e., a
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communication made in the course of an attorney-client relationship.” Costco Wholesale Corp. v.
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Super. Ct., 47 Cal. 4th 725, 733 (2009) (citation omitted). “Once that party establishes facts
necessary to support a prima facie claim of privilege, the communication is presumed to have been
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United States District Court
Northern District of California
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made in confidence and the opponent of the claim of privilege has the burden of proof to establish
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the communication was not confidential or that the privilege does not for other reasons apply.” Id.
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(citing Cal. Evid. Code § 917(a); other citation omitted). Allianz has met its burden. Nothing
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supports the plaintiffs’ contention that outside counsel acted as insurance adjusters, not lawyers.3
Second, the internal communications conveying attorney advice are privileged. Lewis v. Wells
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Fargo & Co., 266 F.R.D. 433, 444 (N.D. Cal. 2010) (relevant inquiry in determining privilege
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over communications between non-attorney corporate employees is “whether: 1) the
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communication was within the scope of the employee’s corporate duties; and 2) the employee was
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aware that the communication was made in order to enable [corporation]’s attorneys to provide
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legal advice to the corporation and understood that the audit to which the communication related
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was to be treated as confidential”).
Third, the plaintiffs challenge Allianz’s withholding of “dozens” of documents as confidential,
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proprietary, and irrelevant.4 Absent burden, relevance is not a sufficient basis for resisting
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production. On this record, the court cannot evaluate Allianz’s claim of confidentiality or
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proprietary information. It claims that the withheld information is “vendor tax information, other
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See id. at 1–2.
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Id. at 3.
ORDER – No. 19-cv-03054-PJH (LB)
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claims and the like,” and it cites Flintkote Co. v. Gen. Acc. Assur. Co. of Canada, No. C 04-01827
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MHP, 2009 WL 1457974, at *5–6 (N.D. Cal. May 26, 2009), for the assertion that reinsurance
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information is confidential and appropriately withheld.5 In a case like this, where reserves and
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reinsurance information do not alter the parties’ contractual obligations, generally the court would
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not allow the discovery. That said, the court has only page one of the privilege log with one
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redaction about subrogation. The court asks Allianz to evaluate its privilege log about whether its
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claimed basis for privilege for the “dozens” of entries provides a sufficient record for the court to
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evaluate Allianz’s claims of confidentiality and proprietary information. If the log is not sufficient,
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Allianz must revise its privilege log to include the appropriate amount of detail. If the parties have
a dispute about the sufficiency of the privilege log and the appropriateness of withholding
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United States District Court
Northern District of California
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information, they must submit either representative entries from the privilege log or, at minimum,
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a log that contains only the claims of confidentiality and proprietary information.
This disposes of ECF No. 55.
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IT IS SO ORDERED.
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Dated: October 13, 2020
______________________________________
LAUREL BEELER
United States Magistrate Judge
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Id. at 5.
ORDER – No. 19-cv-03054-PJH (LB)
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