Stonebreaker v. Guardian Life Insurance Company of America et al

Filing 316

ORDER REGARDING JOINT DEFENSE PRIVILEGE: On or before 10/18/2012, Guardian shall produce to Plaintiff all communications between Guardian, Defendant Western Reserve Life Insurance Company of Ohio, and Defendant Union Security Insurance Company regard ing this case, dated before 4/6/2011 and dated after 7/23/2012. On or before 10/18/2012, Guardian shall produce to Plaintiff a privilege log for all communications between Guardian, Defendant Western Reserve Life Insurance Company of Ohio, and Defend ant Union Security Insurance Company regarding this case, dated from 4/6/2011 to 7/23/2012, that contains the information noted in the Court's 8/2/2012 Order, and noted in this Order. Signed by Magistrate Judge William V. Gallo on 10/4/2012. (mdc)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAMELA STONEBREAKER,

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Plaintiff,
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v.
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THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA, et al.,

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Defendants.

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Civil No. 11-0797-WQH(WVG)
ORDER REGARDING JOINT
DEFENSE PRIVILEGE

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On August 2, 2012, the Court issued an Order After Discovery

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Conference (“Order”). The Order granted in part and denied in part

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Plaintiff’s Motion to Compel Production of Documents. The Order

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directed counsel for Guardian Life Insurance Company of America

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(“Guardian”) to produce to the Court for in camera review, the Joint

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Defense Agreement it had with other defendants in this case. The

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Order also stated:

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For any documents withheld from production on the
basis of the attorney client-privilege, work product,
common interest doctrine, or any other privilege,
Guardian shall provide to Plaintiff’s counsel a
privilege log which contains the following information:
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(a) Document number; (b) Date of document; (c)
(d) Recipient(s)[and identity and position of
ent(s)]; (e) Document type;(f) Assertion
privilege claimed for the document; and (g)
matter of the document.
(Order at 2-3)(emphasis added).

Author;
recipiof the
Subject

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Guardian’s counsel produced to the Court for in camera review

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the Joint Defense Agreement and represented to the Court’s staff

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that he would produce the Joint Defense Agreement to Plaintiff’s

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counsel.

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On August 28, 2012, the Court issued an Order For Further

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Briefing. The Order For Further Briefing directed Plaintiff and

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Guardian to submit briefing regarding the start date and end date of

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the Joint Defense Agreement. The Court has received the further

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briefing.

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1. Joint Defense Agreement

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The joint defense privilege is an extension of the attorney-

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client privilege. It protects communications between parties that

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share a common interest in litigation. In re Grand Jury Subpoena,

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415 F.3d 333, 341 (4th Cir. 2005) cert. denied 546 U.S. 1131 (2006).

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The purpose of the privilege is to allow persons with a common

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interest to “communicate with their respective attorneys and with

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each other to more effectively prosecute or defend their claims.”

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Grand Jury Subpoena, 415 F.3d at 341.

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A joint defense agreement need not be a written agreement. It

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“may be implied from conduct and situation, such as attorneys

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exchanging confidential communications from clients who are or

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potentially

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litigation.” USA v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012).

may

be

co-defendants

or

have

common

interests

in

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Here, there is a written Joint Defense Agreement. However, it

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is undated. Therefore, the Court must determine when the Joint

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Defense Agreement began and when it ended.

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2. Joint Defense Agreement Start Date

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Guardian asserts that the Joint Defense Agreement began on

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March 16, 2011, the date Plaintiff filed her Complaint. Guardian

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also states that on April 6, 2011, all of the defense counsel in

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this action had a telephone conference call and came to an agreement

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in principle that would protect defense counsel’s communications

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with respect to their common interests in defense of this case.

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Guardian also states that the written memorialization of the Joint

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Defense Agreement was signed by all defense counsel on August 5,

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2011.

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Plaintiff asserts, based on Guardian’s counsel’s representations, that the Joint Defense Agreement started on April 6, 2012.

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The Court agrees with Plaintiff. Guardian has represented to

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the Court that on April 6, 2011, all defense counsel in this case

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participated in a telephone conference call regarding the formation

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of a Joint Defense Agreement. Guardian does not state that there

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were any communications between defense counsel from March 16, 2011,

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the date Plaintiff filed her Complaint, to April 6, 2011, the date

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of the telephone conference between defense counsel. Since the Joint

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Defense Agreement need not be written, and may be implied by

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conduct, pursuant to Gonzalez, 669 F.3d at 979, and absent any other

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representations to the contrary, the Court determines that the start

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date of the Joint Defense Agreement was April 6, 2011.

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3. Joint Defense Agreement End Date

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Guardian asserts that the Joint Defense Agreement ended when

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a co-defendant is dismissed from the case. Guardian does not cite

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any authority for this proposition.

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Plaintiff contends that the Joint Defense Agreement ended

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when the parties were no longer pursuing common interests. There-

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fore, the Joint Defense Agreement ended on July 23, 2012, when

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Guardian’s co-defendants signed settlement agreements with Plain-

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tiff.

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A joint defense agreement ends when the parties are no longer

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pursuing common interests. Gonzalez, 669 F.3d at 981, citing Grand

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Jury Subpoena, 415 F.3d at 341.

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Here, the Court agrees with Plaintiff. Gonzalez is clear that

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the end date of a joint defense agreement is when the parties are no

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longer pursuing common interests. Since Guardian’s co-defendants

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signed settlement agreements with Plaintiff on July 23, 2012,

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Guardian was no longer pursuing common interests with its co-

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defendants on that date. As a result, the Joint Defense Agreement

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ended on July 23, 2012.

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IT IS HEREBY ORDERED:

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1. On or before October 18, 2012, Guardian shall produce to

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Plaintiff all communications between Guardian, Defendant Western

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Reserve Life Insurance Company of Ohio, and Defendant Union Security

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Insurance Company regarding this case, dated before April 6, 2011

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and dated after July 23, 2012.

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2. On or before October 18, 2012, Guardian shall produce to

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Plaintiff a privilege log for all communications between Guardian,

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Defendant Western Reserve Life Insurance Company of Ohio, and

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Defendant Union Security Insurance Company regarding this case,

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dated from April 6, 2011 to July 23, 2012, that contains the

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information noted in the Court’s August 2, 2012 Order, and noted in

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this Order.

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DATED:

October 4, 2012

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Hon. William V. Gallo
U.S. Magistrate Judge

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