Hartford Roman Catholic Diocesan Corporation v. Interstate Fire & Casualty Company

Filing 86

RULING Following Fourth In Camera Review (see attached). Signed by Judge Joan G. Margolis on 3/31/15.(Malone, A.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-------------------------------------------------------X
:
HARTFORD ROMAN CATHOLIC DIOCESAN :
CORP.
:
:
V.
:
:
INTERSTATE FIRE & CASUALTY CO.
:
:
-------------------------------------------------------X

3:12 CV 1641 (JBA)

DATE: MARCH 31, 2015

RULING FOLLOWING FOURTH IN CAMERA REVIEW
The factual and procedural history behind this litigation is set forth in this Magistrate
Judge's Ruling on Plaintiff's Motion to Compel Production, filed January 28, 2014 (Dkt. #39),
297 F.R.D. 22 ["January 2014 Ruling"], and in U.S. District Judge Janet Bond Arterton's
Ruling on Defendant's and Plaintiff's Partial Objections to Magistrate Judge's Rulings, filed
January 13, 2015 (Dkt. #64)["January 2015 Ruling"], 2015 WL 164069. Familiarity is also
presumed with this Magistrate Judge's Ruling on Defendant's Motion to Compel Production,
filed February 19, 2014 (Dkt. #43), 2014 WL 652308, Ruling Following First In Camera
Review, filed February 26, 2014 (Dkt. #49)["February 2014 In Camera Review Ruling"],
Ruling Following Second In Camera Review, filed June 12, 2014 (Dkt. #63), and Ruling
Following Third In Camera Review, filed March 25, 2015 (Dkt. #85).
This file has been referred to this Magistrate Judge for all discovery. (Dkt. #29).
Under the latest scheduling order, filed by Judge Arterton on March 10, 2015, all discovery
is to be completed by May 29, 2015, and after a pre-filing conference, all dispositive motions
are to be filed by June 15, 2015. (Dkt. #82).
As set forth in the January 2014 Ruling, in May 2013, plaintiff served twenty Requests
for Production on defendant, as to which defendant responded, with multiple objections, in

August 2013; after several conferences, counsel were able to resolve their disputes with
respect to nine requests, leaving the Court to resolve the remaining eleven requests in the
January 2014 Ruling. 297 F.R.D. at 24 (internal citations omitted). Prior to the Court's
ruling, according to plaintiff, defendant had produced only 569 documents, of which one
hundred and twenty-five were completely redacted and ninety-seven were partially redacted;
however, according to defendant, despite its objections, defendant produced 5,358 pages
of responsive documents, with a fifty-two page privilege log. Id. (internal citations omitted).
The January 2014 Ruling ordered defendant: (1) to produce for in camera review
documents concerning several claims asserted against plaintiff by seven claimants other than
the four Underlying Claimants here (Requests Nos. 5 & 15) and to respond to some of
plaintiff's other requests for documents (Requests Nos. 18, 19 & 20), id. at 24-26; (2) to
produce for in camera review documents relating to the underlying claims (Requests Nos.
12 & 13), id. at 26-29; (3) to respond to certain documents regarding policy interpretation
and application (Requests Nos. 10 & 14), id. at 29-30; and (4) to produce for in camera
review documents regarding reserves (Request No. 17), id. at 30-31.1
On February 11, 2014, defendant filed its Partial Objection with respect to Requests
Nos. 5, 12, 13, 15, 18 and 19. (Dkt. #41; see also Dkt. #48). Ten days later, defendant
filed a Motion for Partial Stay (Dkt. #44), requesting that it need not produce those
documents which are the subject of its pending objection, but instead respond only with
respect to those requests as to which it had not objected; that motion was granted the same
day. (Dkt. #46). In accordance with the January 2014 Ruling, on February 24, 2014,
defendant submitted a small number of documents responsive to Request No. 17, redacting

1

Plaintiff's motion became moot with respect to Request No. 6. Id. at 26.

2

out discussions that defendant contended were protected by the attorney-client privilege and
the work-product doctrine; the February 2014 In Camera Review Ruling found that these
documents were privileged and need not be disclosed to plaintiff.
On January 13, 2015, Judge Arterton overruled defendant's objections with respect
to the January 2014 Ruling, agreeing that an in camera review was appropriate for Requests
Nos. 5, 12, 13 and 15, and ordering production with respect to Nos. 15, 18 and 19. 2015
WL 164069, at *1-7.
As previously stated, in Request No. 5, plaintiff seeks all documents concerning seven
claims asserted against plaintiff by seven claimants other than RM, KS, JA and Matthew Doe;
plaintiff argued that these documents were relevant to the issue of bad faith. 297 F.R.D. at
24-25. The January 2014 Ruling found that "the more current view appears to permit . .
. discovery" of these documents, but in light of defendant's "other legitimate
considerations[,]" defendant was to "submit the responsive documents regarding the seven
other claims to this Magistrate Judge's Chambers for her in camera review, on the issue of
attorney-client privilege, work product doctrine, and/or any other privilege[.]" Id. at 26. In
the January 2015 Ruling, Judge Arterton held that with respect to Request No. 5, the January
2014 Ruling properly ordered an in camera review to determine whether the attorney-client
privilege, work product doctrine, and/or any other privilege "applied in the first instance[,]"
and that "[c]ourts have broad discretion to conduct [an] in camera review to make this initial
determination[,]" which the U.S. Supreme Court "has long held . . . is a highly appropriate
and useful means of dealing with claims of . . . privilege." 2015 WL 164069, at *3 (citations
omitted).
Request No. 12 seeks all documents concerning communications defendant had with

3

any persons or parties concerning the Underlying Claims, including but not limited to the
Onebane Law Firm (especially Attorney Timothy J. McNamara), representatives of Lloyds of
London, London Underwriters and Gallagher-Bassett, and Request No. 13 seeks all
documents relating to the investigation or determination of coverage concerning the
Underlying Claims, including all documentation produced, gathered, and transferred by the
Onebane Law Firm, and by Attorney McNamara in particular. Relying upon several decisions
from this district, the Southern District of New York, and the Connecticut Supreme Court, the
January 2014 Ruling concluded that defendant's documents "appear to be privileged[,]" and
that "plaintiff has not satisfied the threshold necessary for disclosure" of them, but "in an
abundance of caution, the Magistrate Judge is willing to conduct an in camera review of the
disputed documents with respect to Nos. 12-13[.]" 297 F.R.D. at 27-29. With respect to Nos.
12-13, Judge Arterton further found that the in camera review "clear[ly]" had been ordered
to "make the threshold determination as to whether there was any attorney-client privilege
to begin with[,]" that the January 2014 Ruling "did not make a final determination that the
documents were privileged but rather just determined that they 'appeared' to be and that
[an] in camera review was required to confirm this appearance," and that "the fact that
doubts lingered as to whether a potential exception to the privilege could apply does not
make it improper to review in camera documents for the . . . appropriate purpose of
determining in the first instance whether an exception applied." 2015 WL 164069, at *3-4.
On February 20, 2015, defendant submitted to the Magistrate Judge's Chambers a
large box of documents responsive to Requests Nos. 5, 12 and 13, with an explanatory cover
letter; the contents included a copy of a twenty page privilege log regarding Request No. 5,
dated February 20, 2015, a thirty-seven page privilege log regarding Requests Nos. 12-13,

4

also dated February 20, 2015, one expansion folder of documents from 2004 through 2008
responsive to Request No. 5 that were unredacted and another expansion folder of the same
documents as redacted by defendant, and one expansion folder of documents from 2008
through 2012 responsive to Requests Nos. 12-13 that were unredacted and two expansion
folders of documents responsive to Nos. 12-13 that were redacted.
After a careful in camera review, the Magistrate Judge finds that only the following
document in the unredacted folder for Request No. 5 is relevant and not subject to a
privilege:
Interstate 6583 (if defendant wishes, redacting out dollar amounts in first box on top
of page and redacting out second box at bottom of page 6583).
All of the other portions that were redacted by defendant are irrelevant or privileged.
Defendant shall provide a copy to plaintiff's counsel on or before April 17, 2015.
Because this ruling is subject to review, see 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), 6(e) & 72; Rule 72.2 of the Local Rules for United States Magistrate Judges,
United States District Court for the District of Connecticut; Small v. Secretary, 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 Second Circuit), the box of
documents will remain in this Magistrate Judge's Chambers. If either party files an objection
to this ruling, then the documents will be filed under seal and forwarded to Judge Arterton's
Chambers for her in camera review. If no objection is filed, then the documents will be
returned to defense counsel.
This is 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), 6(e) & 72;

5

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.
Dated at New Haven, Connecticut, this 31st day of March, 2015.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

6