Guarantee Insurance Company v. Heffernan Insurance Brokers, Inc. et al
Filing
135
OMNIBUS ORDER re 91 Renewed MOTION to Compel Production of Documents and Privilege Log. Signed by Magistrate Judge Jonathan Goodman on 6/13/2014. (lpr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 13‐23881‐CIV‐MARTINEZ/GOODMAN
GUARANTEE INSURANCE CO.,
a Florida Corporation,
Plaintiff,
v.
HEFFERNAN INSURANCE BROKERS,
INC., a California Corporation; SOCIUS
INSURANCE SERVICES, INC. a
California Corporation,
Defendants.
____________________________________/
OMNIBUS DISCOVERY ORDER
This Cause is before the Undersigned to resolve an outstanding issue related to
Socius Insurance Services, Inc.’s (“Socius,” and, together with Heffernan Insurance
Brokers, Inc., “Defendants”) Renewed Motion to Compel Production of Documents and
Privilege Log from Plaintiff. [ECF No. 91]. Certain other issues in the motion, as well as
those in several other discovery motions, were addressed in prior Orders issued by the
Undersigned on May 7, 2014 and May 30, 2014. [ECF Nos. 106; 124]. However, there
remains an issue regarding potential waiver of certain privileged and/or work‐product‐
protected documents under the at‐issue doctrine or through a previous, intentional
disclosure of a potentially privileged attorney‐client communication containing
extensive attorney work product. This Order addresses those waiver theories.1
In short, the Undersigned finds that Plaintiff has not waived either the attorney‐
client privilege or work product protection by placing causation at issue in this case.
However, by disclosing an opinion letter from counsel containing extensive analysis of
the underlying state litigation (the settlement of which led to this current litigation),
Plaintiff has waived the attorney‐client privilege for communications on that same
specific subject matter (as described and defined below) and any work product
protection that letter would otherwise be afforded—but not the work product
protection afforded other materials.
I.
Factual Background
Plaintiff, a worker’s compensation insurer, filed this case on the same day that it
settled an underlying state litigation. That state litigation (the “Leon Tort Claim”) was
brought by a worker’s compensation claimant who sued Plaintiff for intentional
infliction of emotional distress based on how it handled his claim.
Defendants in the instant federal case are Plaintiff’s insurance agent and
insurance broker. Plaintiff alleges that the Defendants failed to timely notify its excess
In a prior Order, [ECF No. 106], the Undersigned requested additional briefing
on the privilege waiver issues as they related to certain requests for production
propounded by Defendants. The Undersigned’s findings on the privilege issues here
are equally applicable to any other requests for production or subpoenas to third parties
where Plaintiff will invoke or has invoked a substantively similar privilege claim.
1
2
carrier insurer, Catlin, about the Leon Tort Claim, and that, as a result, Catlin refused to
cover any portion of the Leon settlement amount. Plaintiff’s claims against Defendants,
for negligence and breach of fiduciary duty, seek as damages the amount that Catlin
would have paid to Plaintiff for the Leon settlement if it covered the claim in full. One
critical issue in this case is whether Defendants’ alleged breaches actually caused
Plaintiff’s damages, and whether that causation issue is even subject to litigation in this
proceeding.2 Many of the discovery disputes to date have related to materials on these
points.
On February 17, 2014, Defendants propounded requests for production to
Plaintiff that requested, among other things, a wide variety of materials related to the
Leon Tort Claim. Plaintiff, in response, asserted that much of these materials are
protected from disclosure by the attorney‐client privilege or work product protection.
This issue was briefed extensively and the Court held two hearings on these and other
related discovery issues. The privilege issues are resolved in this Order.
One of the defense theories is that Catlin would not have covered this claim even
if it had been timely notified of its existence, or, that if it did provide coverage, it would
have only covered some portion of the claim, rather than the entire claim. According to
Defendants, this is because the Leon Tort Claim was meritless. Under this theory,
Defendants’ alleged breach did not cause Plaintiff’s damage (because the late notice is
irrelevant, given that timely notice would still not, according to the defense theory, have
required coverage by the excess carrier).
2
3
II.
At‐Issue Waiver
In response to Plaintiff’s assertions that certain materials related to the Leon Tort
Claim or its settlement are protected as work product or by the attorney‐client privilege,
Defendants argue, in part, that any applicable privilege is waived here by the “at‐issue”
doctrine. According to Defendants, Plaintiff waived the attorney‐client privilege and
work product protection when it brought this suit because the litigation necessarily
places at issue the merits of the Leon Tort Claim and the reasonableness of its
settlement. Materials related to those issues would substantiate Defendants’ theory that
Catlin would not have provided full coverage, or perhaps any coverage, for the Leon
Tort Claim even if Catlin was timely notified of the claim.
This is a federal diversity action. As such, state law, and specifically Florida state
law, governs attorney‐client privilege issues, while federal law governs work product
doctrine issues. Milinazzo v. State Farm Ins., 247 F.R.D. 691, 696‐700 (S.D. Fla. 2007)
(citing E. Epstein, The Attorney‐Client Privilege and the Work‐Product Doctrine, 1131‐32 (5th
ed. 2006), and noting that attorney‐client communication issues are substantive in
nature and are therefore governed by the forum state’s law, while work product
doctrine issues are considered procedural, and are therefore governed by the Federal
Rules of Civil Procedure and federal case law). Both Florida and federal law provide
for privilege waiver via the “at‐issue” doctrine, though the analysis differs somewhat
under each standard. See, e.g., Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504,
4
508 (Fla. 2nd DCA 2006) (applying Florida “at‐issue” waiver doctrine); Chick‐fil‐A v.
ExxonMobil Corp., No. 08‐61422‐CIV, 2009 WL 3763032, at *7 (S.D. Fla. Nov. 10, 2009)
(applying federal “at‐issue” waiver doctrine).
a. At‐Issue Waiver of the Attorney‐Client Privilege Under Florida Law
Florida law disfavors waiver of the attorney‐client privilege. Compare Coates, 940
So. 2d at 508 (noting attorney‐client privilege waiver is not favored in Florida and
refusing to find waiver based on the at‐issue doctrine) with Christenbury v. Locke Lord
Bissell & Liddell, LLP, 285 F.R.D. 675, 683 (N.D. Ga. 2012) (applying Georgia law,
discussing Coates, and finding waiver via the at‐issue doctrine because, unlike Florida
courts, Georgia courts “confine the attorney‐client privilege ‘to its narrowest
permissible limits’”) (internal citation omitted). Under Florida law, at‐issue waiver only
occurs “when a party ‘raises a claim that will necessarily require proof by way of a
privileged communication.’” Coates, 940 So. 2d at 508 (quoting Jenney v. Airdata Wiman,
Inc., 846 So. 2d 664, 668 (Fla. 2nd DCA 2003)) (emphasis in original). It follows that a
party does not waive the privilege simply by bringing or defending a lawsuit. Id.
(internal citations omitted).
This case is similar to several others in Florida courts where no at‐issue waiver
was found. In Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021,
1022 (Fla. 4th DCA 1998), for example, the plaintiff sued defendants for legal
malpractice and defendants argued that a successor law firm provided advice identical
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to its own allegedly wrong advice, “thereby raising possible issues of causation and
intervening negligence.” Id. Defendants argued that any attorney‐client privilege
between plaintiff and that successor counsel was waived when defendants asserted that
successor counsel was negligent. The court refused to find waiver, noting that while it
recognized “that the fact that respondents have pointed to the negligence of the
successor firm as a defense to the malpractice suit may make the requested documents
relevant . . . the mere relevance of those documents does not override the privilege.” Id.
at 1023.
Other Florida courts have reached similar results. The Coates court, also dealing
with an attorney malpractice claim where the defense was that other professionals
negligently provided advice, put it this way:
Thus, for waiver to occur under the at issue doctrine, the proponent of a
privilege must make a claim or raise a defense based upon the privileged
matter and the proponent must necessarily use the privileged information
in order to establish its claim or defense. Here, the clients have asserted
claims for damages based on the advice they received from the lawyers.
The clients’ claims are not based on the advice they received from their
other counsel, and the lawyers have not shown that the clients must
necessarily introduce communications with other counsel to prove their
claims against the lawyers.
Coates, 940 So. 2d at 510‐11; see also Choice Rest. Acquisition Ltd. v. Whitley, Inc., 816 So. 2d
1165, 1167‐68 (Fla. 4th DCA 2002) (“a court cannot find waiver of the [accountant‐client]
privilege merely because the information sought is needed by the opposing party to
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provide information helpful to cross‐examination or for the defense of a cause of
action”).
Plaintiff’s claims in this case, breach of fiduciary duty3 and negligence,4 do not
necessarily require proof that Defendants’ conduct was the only cause of their claimed
damage. Under Florida law, Plaintiff’s causation burden on negligence is just to show
that, “it can reasonably be said that, but for the negligence, the damage would not have
occurred.”5 It is the Defendants who will seek to interject evidence of causation and
intervening negligence in an effort to show that their alleged negligence was not the
“but for” cause of Plaintiff’s damage. Under Florida law, Plaintiff has not put causation
Plaintiff’s Second Amended Complaint, at paragraph 34, that “[a]s a proximate
result of Defendants’ breaches of their fiduciary duty, Plaintiff has suffered damages,
including Catlin’s denial of insurance coverage and the damages stemming from that
denial.” [ECF No. 27, at p. 6].
4
Plaintiff’s Second Amended Complaint notes, at paragraph 39, that “[a]s a direct
and proximate result of Defendants’ negligence, Plaintiff has suffered damages,
including Catlin’s denial of insurance coverage and the damages stemming from that
denial.” [ECF No. 27, at p. 7].
5
Florida jury instructions on causation in negligence cases provide that:
Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and
in natural and continuous sequence produces or contributes substantially
to producing such [loss] [injury] [or] [damage], so that it can reasonably be
said that, but for the negligence, the [loss] [injury] [or] [damage] would
not have occurred.
In re Standard Jury Instructions In Civil Cases‐Report No. 09‐01 (Reorganization of the Civil
Jury Instructions), 35 So. 3d 666 (Fla. 2010) (emphasis added).
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or intervening negligence directly at issue in this case, and for that reason, the
Undersigned finds there has been no at‐issue waiver of the attorney‐client privilege.
b. At‐Issue Waiver of Work Product Protection Under Federal Law
The federal standard governing the at‐issue doctrine turns on an analysis slightly
different than that under Florida law. Under the federal standard, “[f]airness may
compel a finding of an implied waiver when a party asserts a claim or defense that
‘requires examination of protected communications.’” Chick‐fil‐A, 2009 WL 3763032, at
*11 (quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)). But, even
under the federal standard, in order for a court to properly find at‐issue waiver, it is the
holder of the privilege that must have put the information sought at issue.
The Third Circuit has dealt with a waiver issue similar in many respects to the
one before the Court here. Rhone–Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851
(3d Cir. 1994).6 In that case, the plaintiffs sued an insurer for its failure to defend and
indemnify plaintiffs for several claims brought against them by third parties. One of
the defendant‐insurer’s affirmative defenses was that the claims at issue were excluded
from the insured’s policy because the policy only covered “damage neither expected
nor intended from the standpoint of the insured.” Id. at 856 (internal quotation
omitted). To prove this affirmative defense, the insurer requested all evaluations or
This case was examined in detail by the 11th Circuit’s Judge Rosenbaum when
she was a magistrate judge in this district. Stern v. OʹQuinn, 253 F.R.D. 663, 677‐79 (S.D.
Fla. 2008). Her evaluation of Rhone‐Poulenc is consistent with the one discussed here.
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assessments of plaintiffs’ potential liability for the claims before the policy was
purchased, including those of plaintiffs’ counsel. The Third Circuit found that there
was no at‐issue waiver in that case because the party invoking the privilege was not the
party who had put the sought‐after information at issue. In reaching this conclusion,
the court acknowledged that other federal courts extended waiver further, but still
refused to do so. Specifically, the court noted that:
Some decisions have extended the finding of a waiver of the privilege to
cases in which the clientʹs state of mind may be in issue in the litigation.
These courts have allowed the opposing party discovery of confidential
attorney client communications in order to test the clientʹs contentions.
See, e.g., Byers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983); Hearn v. Rhay, 68
F.R.D. 574 (E.D. Wash. 1975). These decisions are of dubious validity.
While the opinions dress up their analysis with a checklist of factors, they
appear to rest on a conclusion that the information sought is relevant and
should in fairness be disclosed. Relevance is not the standard for
determining whether or not evidence should be protected from disclosure
as privileged, and that remains the case even if one might conclude the
facts to be disclosed are vital, highly probative, directly relevant or even
go to the heart of an issue.
Id., 32 F.3d at 864.7 So, in examining cases where at‐issue waiver was, in its view,
properly found, the Rhone‐Poulenc court noted that:
In these cases, the client has made the decision and taken the affirmative
step in the litigation to place the advice of the attorney in issue. Courts
have found that by placing the advice in issue, the client has opened to
examination facts relating to that advice. Advice is not in issue merely
because it is relevant, and does not necessarily become in issue merely
because the attorneyʹs advice might affect the clientʹs state of mind in a
relevant manner. The advice of counsel is placed in issue where the
The factors Defendants cite in their brief are these very Hearn factors that the
Third Circuit dismissed as “dubious” in Rhone‐Poulenc, 32 F.3d at 864.
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client asserts a claim or defense, and attempts to prove that claim or
defense by disclosing or describing an attorney client communication.
Id. at 863 (emphasis added).8
In this case, Plaintiff’s counsel’s work product is not necessary for Plaintiff to
prove its case at trial. This is not an example of where “it would be entirely unfair for a
case to turn on an issue upon which one party has no knowledge and is barred from
access to the necessary information while the other party is able to use the information
to establish its claim while shielding it from disclosure.” Abbott Labs. v. Alpha
Therapeutic Corp., 200 F.R.D. 401, 410‐11 (N.D. Ill. 2001) (finding at‐issue waiver).
Plaintiff’s counsel’s work product is not absolutely necessary for Defendants to defend
this action either. Defendants can use non‐protected materials to show that Catlin
would not have covered the Leon Tort Claim settlement even if Defendants had timely
notified Catlin of the claim. For example, Defendants could undertake their own
independent appraisal of the merits of the Leon Tort Claim and whether, and for how
much, it should have been settled. There is no showing here that Defendants must have
Plaintiff’s counsel’s work product to prove their point.
The Undersigned, applying applicable federal law, finds that the case before the
Court is quite clearly not one where Plaintiff, the privilege‐holder, has placed the advice
8
The Rhone‐Poulenc court’s reasoning is equally applicable to the work product
doctrine. Stern, 253 F.R.D. at 678, n.6 (finding the same).
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of its counsel at issue, and so the Undersigned finds there is no at‐issue waiver of work
product protection in this case.
III.
Selective Disclosure Waiver
On May 3, 2010, Hinda Klein, a Conroy Simberg attorney and counsel for
Plaintiff Guarantee Ins. Co. in the Leon Tort Claim, issued a comprehensive letter (the
“Klein Letter”) analyzing “the merits, or lack thereof” of the Leon Tort Claim. [ECF No.
71‐5, at p. 1]. That five‐page letter contains extensive analysis of the Leon Tort Claim,
which Leon’s counsel had threatened to bring at that time, though it was not yet filed.
In the week before the comprehensive attorney letter was issued, Plaintiff and
Defendant Heffernan had discussed how best to submit the matter of the potential Leon
Tort Claim to Plaintiff’s errors and omissions insurer, XL, and had determined that the
Leon Tort Claim documentation should be submitted with a cover letter from counsel.9
The Klein Letter is that cover letter. The Conroy Simberg law firm issued it to Plaintiff,
who then shared it with Defendant Heffernan, who, in turn and with Plaintiff’s consent
and approval, forwarded it on to XL. Plaintiff claims that the Klein Letter is protected
by both the attorney‐client privilege and work product protection. Defendants argue
that the letter’s disclosure operates to waive privilege and work production protection
for the Klein Letter as well as for other documents.
XL was put on notice of the Leon Tort Claim and did eventually provide
coverage for Plaintiff’s related insurance claim. At issue in this case is Defendants’
alleged failure to timely put the excess insurance carrier, Catlin, on notice of the Leon
Tort Claim.
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a. Selective Disclosure Waiver of the Attorney Client Privilege under
Florida Law
Plaintiff acknowledges that the Klein Letter may be used by Defendants in this
case because it was sent to them. However, Plaintiff argues that disclosure of the Klein
Letter to Defendant Heffernan and XL was not a disclosure to a third party that vitiates
any potential privilege because the three parties (Defendant Heffernan, XL, and
Plaintiff) shared a common interest at the time of the disclosure, May 3, 2010. Plaintiff,
as the proponent of the privilege, has the burden of proving its applicability. Hickman v.
Taylor, 329 U.S. 495, 510‐12 (1947); MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295
F.R.D. 550, 584 (S.D. Fla. 2013). Plaintiff has not met its burden here.
The common interest doctrine, also known as the joint defense doctrine, allows
litigants with common interests to exchange privileged information without losing the
privilege, as long as certain requirements are met. Visual Scene, Inc. v. Pilkington Bros.,
PLC, 508 So. 2d 437, 442 (Fla. 3d DCA 1987). To determine whether communications
were made within such a common interest, “one must first answer the questions
whether the communication was ‘made and maintained in confidence under
circumstances where it is reasonable to assume that disclosure to third parties was not
intended.’” Id. at 441 (quoting In re LTV Sec. Litig., 89 F.R.D. 595, 603‐04 (N.D. Tex.
1981)).
“While a well‐drafted joint defense agreement makes it simple for the courts to
determine whether the parties intended to participate in a joint defense, an executed
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agreement is not a necessary ingredient to a common interest privilege claim.” Boyd v.
Comdata Network, Inc., 88 S.W.3d 203, 217 (Tenn. Ct. App. 2002) (citing Power Mosfet
Techs. v. Siemens A.G., 206 F.R.D. 422, 425 (E.D. Tex. 2000)). In Visual Scene, a Florida
appellate court based its finding that two parties shared a common interest on an
“affidavit attesting to a before‐the‐exchange agreement stating their intention to
maintain confidentiality and to use the information only in preparation for trial on
those issues common to both.” Visual Scene, Inc., 508 So. 2d at 441. Another court in a
similar position based its finding that there was a common interest on the fact that the
communication at issue was “best viewed as part of an ongoing and joint effort to set
up a common defense strategy.” Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir. 1985)
(emphasis added).
Plaintiff has failed to carry its burden for demonstrating that any privilege
applicable to the Klein Letter was not waived via disclosure to Defendant Heffernan
and XL. First, Plaintiff only states that there was “arguably” a common interest. [ECF
No. 123, at p. 2]. The only fact that Plaintiff offers to support a common interest is that
XL accepted coverage and agreed to pay defense costs. But, this says nothing about the
positions of the various parties at the time the disclosure was made. The Klein Letter
was sent in a package that first put XL on notice of the Leon Tort Claim. Without prior
notice of the claim, XL could not have already accepted the defense obligations of
Plaintiff or otherwise agreed to participate in litigating the Leon Tort Claim. See, e.g.,
13
Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905 (Fla. 3d DCA 2004) (noting that
insurer and insured share common interest once insurer accepts defense obligations of
insured).10 Plaintiff has offered no argument that there was any joint intent on the part
of XL and Plaintiff to set up a joint defense. Plaintiff has not met its burden on this
issue, as the party advocating for privilege, and the Undersigned finds that there was
no common interest here.11
The Undersigned finds that by sharing the Klein Letter with Defendant
Heffernan and XL, Plaintiff has waived the attorney‐client privilege for communications
While there is little Florida caselaw on the common interest doctrine, as noted in
Cone v. Culverhouse, 687 So. 2d 888, 892 (Fla. 2nd DCA 1997), other courts in other states
have addressed facts similar to those here. For instance, an intermediate appellate court
in New York found there was no common interest between a reinsurer and an insurer,
in part because while insurers are often obligated to defend insureds, a reinsurer owes
no such duty to an insured. Am. Re‐Ins. Co. v. U.S. Fid. & Guar. Co., 40 A.D.3d 486, 491‐
92 (N.Y. App. Div. 1st Dep’t 2007). That court noted that the “mere fact” that the parties
shared an interest in the outcome of litigation was not enough to create a common
interest. Id. Whether or not XL is considered a reinsurer, Plaintiff has offered no
support for the notion that XL would have participated (or did participate) in a joint
defense of the Leon Tort Claim or that XL had a duty to defend Plaintiff.
11
Conceivably, Plaintiff’s privilege argument could have been stronger had it
argued that the Klein Letter did not operate as a waiver, because the document was
never intended to be kept confidential. In that way, Plaintiff could argue the Klein
Letter does not waive the privileged status of other communications to or from counsel
that were meant to be confidential. Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor,
Inc., 698 So. 2d 276, 278 (Fla. 3d DCA 1997) (“Section 90.502(1)(c), Florida Statutes
(1995), provides that an attorney‐client communication is confidential if it is not
intended to be disclosed to third parties.”). Plaintiff made no such argument.
10
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from and to counsel regarding the same subject matter.12 Alliant Ins. Servs., Inc. v.
Riemer Ins. Grp., 22 So. 3d 779, 781 (Fla. 4th DCA 2009) (“if attorney‐client privilege is
waived regarding a certain matter, the waiver is limited to communications on the same
matter.”) (internal citation omitted).
Defining the scope of waived subject matter in cases such as this is often a
difficult one for courts. In general, a litigant has not waived the privilege as to all
communications with the counsel in question, but, fairness dictates that “a litigant
cannot pick and choose those portions of the attorney‐client communications that will
be disclosed, thereby disguising, garbling, or manipulating the truth.” Epstein, The
Attorney‐Client Privilege and the Work‐Product Doctrine, 378 (4th ed. 2001). “In practice,
the interpretation given to the term ‘subject matter’ varies from case to case.” Id. at 379.
Courts determining the scope of a subject matter waiver in a particular case
consider factors such as: (1) the general nature of counsel’s assignment; (2) the extent to
which counsel’s activities in fulfilling the assignment are undifferentiated and unitary
or are distinct and severable; (3) the extent to which the disclosed and undisclosed
Plaintiff cites Old Stone Bank v. Farris, 647 So. 2d 916, 917 (Fla. 4th DCA 1994) for
the proposition that disclosure of one attorney‐client privileged communication does
not waive the privilege as to others. There, the party arguing waiver attempted to use
the voluntary production of one attorney‐client privileged communication between a
bank and its counsel to open the door to all communications between the bank and that
counsel. That argument was meritless. As outlined in this Order, by disclosing the
Klein Letter, Plaintiff has waived privilege over other communications on the same
subject matter. Plaintiff’s disclosure of the Klein Letter does not operate as a waiver
over all communications with counsel.
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communications share, or do not share, a common nexus with a distinct activity; (4) the
circumstances in and purposes for which disclosure was made originally; (5) the
circumstances in and purposes for which further disclosure is sought; (6) the risks to the
interests protected by the privilege if further disclosure were to occur; and (7) the
prejudice which might result without disclosure. United States v. Skeddle, 989 F. Supp.
917, 918‐19 (N.D. Ohio 1997).
Based on these factors, the Undersigned will limit the scope of the waiver to
Conroy Simberg communications to or from Plaintiff that occurred prior to the filing of
the underlying state litigation, the Leon Tort Claim. Those communications subject to
waiver are further limited to only those pre‐suit communications, or parts of
communications, that involve pre‐suit analysis of the merits of the Leon Tort Claim.
Fairness dictates this result. The disclosure of the Klein Letter should not operate to
waive privilege as to other, post‐suit communications. But, on the other hand,
Defendants have a right, since this single pre‐suit communication has been disclosed, to
other pre‐suit communications.
Conroy Simberg’s ultimate appraisal of the Leon Tort Claim likely changed
during the more‐than‐three‐year period between the issuance of the Klein Letter, which
generally describes the Leon Tort Claim as meritless, and the time the Leon Tort Claim
was ultimately settled, for several million dollars. At the time the Klein Letter was
issued, its purpose and disclosure were to notify Plaintiff’s errors and omissions insurer
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of the Leon Tort Claim. This pre‐suit appraisal of the Leon Tort Claim was based on
far‐less information than was available once suit was filed, or after litigation had
continued for several years. The scope of waiver announced here will strike the proper
balance between fairness to the Defendants in this case, considering disclosure to some
extent has already occurred, and fairness to the Plaintiff, who should not lose privilege
as to all other privileged communications with Conroy Simberg simply by agreeing to
the disclosure of the Klein Letter.
No production of privileged documents will occur at this time, however. Any
production must await resolution of Plaintiff’s most recent Motion for Protective Order,
which moves for a protective order “against all discovery related to the merits of the
Leon case, challenging the settlement amount of the Leon case or in any way attempting
to relitigate the Leon case.” [ECF No. 130, at p. 1] (emphasis added). Depending on the
ruling, the Court will, if necessary, order production of privileged documents to occur,
consistent with the parameters described above. If the Undersigned grants Plaintiff’s
motion for protective order, then the documents subject to waiver would be beyond the
scope of discovery. On the other hand, an order denying the motion, even in part,
would not lead to an off‐limits status of the documents as irrelevant.
b. Selective Disclosure Waiver of Work Product Protection Under
Federal Law
The Undersigned finds that the voluntary disclosure of the Klein Letter generates a
waiver of work product protection under federal law, but the consequences are limited.
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The attorney‐client privilege and work product protection have different purposes, and
so waiver of one has no bearing on waiver of the other. Visual Scene, Inc., 508 So. 2d at
442 (citing Transmirra Prods. Corp. v. Monsanto Chem. Co., 26 F.R.D. 572, 578 (S.D.N.Y.
1960)).
With work product protected materials, disclosure operates only to waive the
protection for the actual material disclosed, not other materials. Now‐11th Circuit‐Judge
Rosenbaum, faced with this issue as a magistrate judge, put it this way:
Due to the sensitive nature of work‐product materials and the policy
behind maintaining their secrecy, generally speaking, when work‐product
protection has been waived, it is “limited to the information actually
disclosed, not subject matter waiver.” Continental Casualty Co., 537 F.
Supp. 2d at 773 (citing Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215,
1223 (4th Cir. 1976); Epstein, The Attorney–Client Privilege and the Work
Product Doctrine 612 (2001) (“[I]nadvertent or even intentional disclosure
of work‐product documents will not necessarily constitute waiver as to all
such documents.”); 6 James Wm. Moore, et al., Mooreʹs Federal Practice §
26.70[6][c] (3d ed. 2004) at 26–467 (“A waiver of work‐product protection
encompasses only the items actually disclosed. Thus disclosure of some
documents does not imply that work product protection has been
destroyed for other documents of the same character.”)).
Stern v. OʹQuinn, 253 F.R.D. 663, 683 (S.D. Fla. 2008). Consequently, Plaintiff’s
disclosure generated a waiver of the Klein Letter, but the waiver does not extend to
other documents that are work product protected.
DONE AND ORDERED in Chambers, in Miami, Florida, June 13, 2014.
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Copies furnished to:
Honorable Jose E. Martinez
All Counsel of Record
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