ARTRA 524(g) Asbestos Trust v. Fairmont Premier Insurance Co. et al

Filing 142

MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 9/28/2011: Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ARTRA 524(g) ASBESTOS TRUST,
Plaintiff,
v.
TRANSPORT INSURANCE CO., as
successor to TRANSPORT
INDEMNITY CO.,
Defendants.

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Case No. 09 C 458
Judge Sharon Johnson Coleman
Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge
Before the court are two motions to compel discovery: Defendant Transport Insurance
Company’s Motion to Compel Plaintiff and Frank/Gecker LLP to Produce Documents (Def.’s Mot.)
and Plaintiff ARTRA 524(g) Asbestos Trust’s Motion to Compel Production of Reinsurance
Documents and Communications (Pl.’s Mot.). For the reasons stated below, defendant’s motion to
compel is granted, and plaintiff’s motion to compel is granted in part and denied in part.1

1

Transport’s motion and the parties’ subsequent related submissions are cited as:
Transport’s Insurance Company’s Motion to Compel Plaintiff and Frank/Gecker to Produce
Documents: “Def.’s Mot.” [dkt 100], and its supporting memorandum: “Def.’s Mem.” [dkt 105]; the
Trust’s Memorandum in Opposition to Transport Insurance Company’s Motion to Compel and in
Support of Plaintiff’s Cross-Motion for a Protective Order: “Pl.’s Opp’n” [dkt 112.]; Transport’s
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BACKGROUND
ARTRA 524(g) Asbestos Trust (“the Trust”) brought this action against Transport Insurance
Company (“Transport”) for a declaratory judgment and damages under Illinois law for breach of an
insurance policy issued by Transport’s predecessor in interest.2 Transport issued a policy of excess
comprehensive general liability insurance coverage to ARTRA Group, Inc. (“ARTRA Group”) for
the policy year April 1, 1984 - April 1, 1985. (First Am. Compl. ¶¶ 1, 15, 17.) [Dkt 37.] On June
3, 2002, ARTRA Group filed for bankruptcy protection from mounting liabilities it faced resulting
from its ownership of the Synkoloid Company, a company that manufactured, sold and distributed
products containing asbestos. (First Am. Compl. ¶¶ 10, 11, 22; see also Voluntary Pet., In re
ARTRA Group, Inc.) [Bankr. N.D. Ill., No. 02 B 21522, dkt 1.] As described below, the Trust was
established by ARTRA Group’s Joint Reorganization Plan to liquidate and resolve all of ARTRA
Group’s asbestos-related personal injury liabilities. (Ans. ¶ 23.) [Dkt. 38.]
In this lawsuit, the Trust seeks to reach Transport’s excess policy in order to pay claims for
asbestos-related injuries; Transport denies liability. In the present motions, both sides seek
documents the other claims are privileged or protected. In order to resolve the motions, it is

Reply: “Def.’s Reply” [dkt 115]; Frank/Gecker LLP’s Supplemental Memorandum in Opposition:
“F/G Suppl. Mem.” [dkt 127]; and Transport’s Response to Frank/Gecker LLP’s Supplemental
Memorandum: “Def.’s Suppl. Resp.” [dkt 132]. The Trust’s motion and the parties’ subsequent
related submissions are cited as: Plaintiff ARTRA 524(g) Asbestos Trust’s Motion to Compel
Production of Reinsurance Documents and Communications: “Pl.’s Mot.” [dkt 106]; Transport’s
Memorandum in Opposition: “Def.’s Opp’n” [dkt 111]; the Trust’s Reply: “Pl.’s Reply” [dkt 116];
Transport’s Supplemental Memorandum in Opposition: “Def.’s Suppl. Mem.” [dkt 124]; and the
Trust’s Supplemental Memorandum in Support of Plaintiff’s Motion to Compel: “Pl.’s Suppl.
Reply” [dkt 133].
2

Because Transport has assumed that predecessor’s liabilities (Ans. ¶ 17 [dkt 38]), this
opinion will simply refer to “Transport.”
2

necessary to understand the background of the Trust.

A.

Creation of the ARTRA 524(g) Asbestos Trust

In June 2002, the United States Trustee appointed a creditors committee (the “Creditors
Committee”), consisting of ARTRA Group’s largest unsecured creditors and certain attorneys for
holders of asbestos-related personal injury claims. (Pl.’s Opp’n, Unlabeled Ex., Aff. of Joseph D.
Frank ¶ 4.) [Dkt 112-3.] The Creditors Committee retained Joseph Frank and Frances Gecker (first
of Freeborn & Peters, later Neal Gerber & Eisenberg, then Frank/Gecker (“F/G”)) as its attorneys.
(Id.) The Creditors Committee also hired Legal Analysis Systems (“LAS”), a claims forecaster, to
provide expert assistance. (Id. ¶ 5.) The Creditors Committee negotiated the terms of an Amended
Joint Reorganization Plan (“the Plan”) with ARTRA Group and with the Future Claimants’
Representative (former Bankruptcy Judge Erwin Katz (ret.)) who had been appointed by the
Bankruptcy Court to represent the interests of future asbestos claimants. (Id.)
On January 24, 2007, ARTRA Group filed the Plan, which was confirmed by the Bankruptcy
Court and by the District Court. (Id. ¶2.)3 The Plan became effective on April 2, 2007. (Id. ¶2.)

B.

The Trust procedures

The Plan included the formation of the Trust pursuant to Section 524(g) of the Bankruptcy
Code (11 U.S.C. § 524(g)). (Plan § 6.6.) The purpose of the Trust is “to assume liability for all
Asbestos Personal Injury Claims . . . and to use the Asbestos Trust Assets to pay holders of Allowed

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Neither party provided the court with a copy of the Plan, but it is available on the docket
of the Bankruptcy Court. [Bankr. N.D. Ill. No. 02 B 21522, dkt 1187, 1196.]
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Asbestos Personal Injury Claims in accordance with the Asbestos Trust Agreement and the Trust
Distribution Procedures.” (Plan § 6.6(a); see also 11 U.S.C. § 524(g)(2)(B)(i)(I-IV).) The Trust is
required to implement certain procedures to resolve and pay claims such that it “will value, and be
in a financial position to pay, present claims and future demands that involve similar claims in
substantially the same manner.” 11 U.S.C. § 524(g)(2)(B)(ii)(V).
The Trust is the successor to certain assets and liabilities of ARTRA Group. (Ans. ¶ 23; Plan
§ 6.6.) The Honorable Alfred Wolin (ret.) serves as the trustee. (J. Frank Aff. ¶ 2.) Allowance of
a claim by the trustee establishes the Trust’s liability for that claim. (Ans. ¶ 26.) Notably, Transport
has denied that the allowance of any claim by the trustee operates to establish liability under the
Transport policy. (Id.)
The Trust evaluates and pays claims pursuant to the Trust Distribution Procedures (“TDPs”),
including Scheduled Values and Average Values for certain claims, which are incorporated into the
Plan. (Def.’s Mot., Unlabeled Ex., Aff. Kevin A. Titus, Ex. N.) [Dkt 101.] The TDPs, which are
publically available, define the criteria for determining whether an asbestos bodily injury claim is
compensable, and specify the Scheduled Values of amounts to be paid for claims reviewed under
the Trust’s expedited review procedure. (Id. §§ 5-7.) The TDPs provide for both an expedited
review pursuant to the schedules and an Individual Review Process that allows for more intensive
individualized claim evaluation. (Id. § 5.3(a), (b).) According to Transport, the overwhelming
majority of claims submitted to the Trust seek expedited review under the TDPs. (Def.’s Mem. at
11.)
The TDPs were the product of negotiations between the Creditors Committee (then
represented by F/G) and the Future Claimants’ Representative regarding the Plan and the Trust

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Agreement. Among the documents Transport seeks in its motion are communications between F/G
and the Creditors Committee about those negotiations.
The Creditors Committee dissolved in April 2007, when the Plan became effective. (Plan
§ 15.3.) The Trustee then retained F/G to represent the Trust, and Verus Claims Services, LLC,
(“Verus”) to process claims. (J. Frank Aff. ¶ 2.) According to the Trust, as of July 2009, the Trust
had allowed 5,934 claims, and had paid over $464,000,000 in claims and pre-petition settlements.
(First Am. Compl. ¶28.)

C.

The Transport policy

The Transport policy is a part of an excess layer of ARTRA Group’s insurance coverage.
(Ans. ¶¶ 15, 17.) In pertinent part, the Transport policy provides indemnification for “ultimate net
loss” following “the insuring agreements, conditions and exclusions of the underlying insurance
(whether primary or excess) immediately preceding the layer of coverage provided by” the Transport
policy. (Id.; First Am. Compl., Ex. C ¶¶ 1, 2.) According to the Trust, as of September 2009, only
about $2,451,000 of the policy limits of the lower (“umbrella”) layer of insurance coverage
remained unexhausted, and the total allowed claims had already exhausted the underlying layer of
insurance. (First Am. Compl. ¶ 14.)
The Trust alleges that it has made several demands to Transport for payments of the allowed
claims, but Transport has refused or reserves its right to refuse to pay. (Id. ¶¶ 29-30.) Transport
disputes that it owes any coverage under the policy for the Trust’s liabilities. (Ans. ¶ 33.) It alleges
a number of affirmative defenses, including that the Trust is not an insured and has no rights under
the Transport policy. (Ans., Sixth Aff. Defense.) Transport also alleges that some or all of the

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claims or damages are not covered by the policy because they do not fall within the terms of the
policy coverage (for example, the claims do not constitute an “occurrence” or are not based on
“bodily injury” as defined in the policy). (Ans., Seventh, Eighth, Ninth, Eleventh Aff. Defenses.)

D.

The present motions

Both parties served discovery requests upon each other. In addition, Transport sought
documents in connection with depositions and served a subpoena on F/G, which has asserted
privilege and work product objections. (Titus Aff., Exs. E, G, H.) The parties submitted their
withheld documents for in camera review. During the course of briefing and court hearings on the
motions, the parties narrowed the disputes. The number of contested documents has been
significantly reduced.4 The motions are addressed below in turn.

DISCUSSION
I.

Transport’s Motion to Compel
Transport seeks to compel the Trust and F/G to produce documents related to the following:
(1) the handling, adjustment, processing and payment of asbestos bodily injury claims;
(2) the Trust’s evaluation and payment of pre-petition settlements of asbestos bodily injury
claims; and

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For example, part of Transport’s motion sought documents relating to the Individualized
Review Process for the payment of claims submitted for such review. Transport particularly wanted
the Individualized Review Valuation Methodology Memorandum, which Transport’s counsel had
previously been permitted to see and to question deponents about but not to keep. (Def.’s Mem. at
5.) After a hearing, the parties reached an agreement, and the documents have been produced. (See
dkt 134, 135.) Both that portion of Transport’s motion and the Trust’s cross-motion for a protective
order (included in the body of its opposition to Transport’s motion) are, therefore, moot.
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(3) the drafting and determination of the TDPs, including the Expedited Review Schedule
and Average Values.
(Def.’s Mot. ¶ 5; Def.’s Mem. at 2-3.)
It is important to note that Transport does not seek documents relating to the Trust’s
litigation of this lawsuit. (Def.’s Reply at 8.) Rather, it seeks documents relating to the claims for
asbestos-related damages that the Trust alleges Transport must pay under the policy.
The Trust does not argue that the documents Transport seeks are not relevant. Rather, the
objections before the court are that the documents are protected by attorney-client privilege or workproduct protection, and that there is no common interest between the Trust and Transport. (Pl.’s
Opp’n at 4, 10.) The Trust asserts such protection for documents dated after the creation of the Trust
in April 2007. It also argues for protection for communications between the Creditors Committee
and its then-counsel F/G and the consultant LAS that pre-date the formation of the Trust, and that
deal with the negotiation of the terms of the Plan, including the TDPs. (Id. at 6-8.)5
Transport argues that documents that belong to the Trust or F/G are either not protected by

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The identity of specific documents at issue in Transport’s motion has been something of
a moving target. Initially, Transport provided spreadsheets of the documents it sought. (Titus Aff.,
Ex. A .) The Trust and F/G responded with their own two spreadsheets, apparently dividing the
documents into whether the privilege or protection was claimed by the Trust (Pl.’s Opp’n, Ex B) or
on behalf of the Creditors Committee (id., Ex. A). After the court ordered the disputed documents
to be provided for in camera inspection, F/G tendered a packet of documents and advised the court
that all other requested documents would be produced to Transport. (Dkt 139.) That turned out to
be not quite correct.
A minute order was issued identifying the documents listed on Transport’s spreadsheet but
not appearing on the Trust and F/G’s spreadsheets and not delivered for in camera inspection. (Dkt
136.) Transport was given leave to confirm whether those documents were still at issue in its
pending motion to compel. (Id.) Transport’s subsequent submission noted that ten documents the
Trust and F/G had suggested had been produced remained in dispute. (Dkt 137.) Those ten
documents were thus ordered to be provided for in camera inspection. (Dkt 138.) The documents
were duly delivered for inspection. (Dkt 140.)
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the attorney-client privilege or work-product doctrine or have been put at issue by the Trust’s
indemnification claims. (Def.’s Mem. at 7-9, 11-14; Def.’s Reply at 7-11.) It further argues that any
claim of privilege relating to communications with the Creditors Committee can no longer be
sustained since that Committee no longer exists. (Def.’s Reply at 4-5.)
At a hearing on the motion, the court raised the question of who can assert privilege on
behalf of the now-dissolved Creditors Committee. F/G was given leave to file a supplemental
memorandum in opposition to Transport’s motion on that issue. (Order, Apr. 12, 2011.) [Dkt 121.]
That memorandum does not answer the question directly, but it appears that F/G is asserting
privilege on behalf of its former client, the Creditors Committee.

F/G maintains that

communications between it, the Creditors Committee and LAS remain protected because the
Committee members expected their communications to remain confidential beyond the lifetime of
the Committee and because the Creditors Committee itself has not put them at issue in this case.
(F/G Suppl. Mem. at 5-10.) In support, F/G submitted identical affidavits from attorneys who had
been members of the Creditors Committee regarding communications with F/G and LAS. (Id., Exs.
A-F.) Each of the affiants states that he or she “rel[ied] upon the understanding that these
communications were, and would remain confidential communications covered by the attorneyclient privilege.” (Id.¶ 6.)

A.

Claims handling and evaluation documents, and pre-petition settlement documents

The claims handling and evaluation documents reflect communications among the Trustee,
the Trust’s counsel (F/G), and employees of Verus pertaining to the processing and valuation of
asbestos claims made against the Trust. (Def.’s Mem. at 7-9; Titus Aff., Ex. A at 1-17.) They

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discuss, for example, whether a particular Synkoloid product contained asbestos (FGA 1631); or
whether a particular claimant’s claim might be barred by the state statute of limitations (FGA 163235). The “pre-petition settlement” category consists of documents that reflect communications
among those same persons relating to F/G’s and Verus’s analysis of settlements reached between
ARTRA Group and various asbestos claimants before ARTRA Group filed its petition for
bankruptcy, and a discussion of processes for handling such settlements. (Def.’s Mem. at 14-15;
Titus Aff., Ex. A at 20-23).

1.

The Trust’s assertion of attorney-client privilege

Relying on the Illinois Supreme Court’s holding in Waste Mgt., Inc. v. Int’l Surplus Lines
Ins. Co., 579 N.E.2d 322 (Ill. 1991), Transport argues that the attorney-client privilege and workproduct protection do not prevent Transport from discovering all of the Trust’s documents on those
subjects, both because of the common interest shared between an insurer and its insured and because
of the cooperation clause in the Transport policy. (Def.’s Mem. at 7-8, 14-15.) By bringing this
coverage action, Transport argues, the Trust has put information regarding its claims evaluation and
payment process at issue in the case. (Id. at 9, 14-15.)
Because Illinois state law supplies the rule of decision here, Illinois law applies to the
analysis of attorney-client privilege. See Fed. R. Evid. 501. In Waste Management, the Illinois
Supreme Court held that, in a coverage action, the attorney-client privilege and work-product
protection do not bar discovery of the insured’s counsel’s underlying litigation files. Waste Mgt.,
579 N.E.2d at 327. The court started its analysis by observing that, under Illinois law, “it is the
privilege, not the duty to disclose, that is the exception. . . . [I]n Illinois, we adhere to a strong policy

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of encouraging disclosure, with an eye toward ascertaining that truth which is essential to the proper
disposition of a lawsuit.” Id. (citations omitted). Although the court found the underlying litigation
files relevant and at issue in the subsequent coverage litigation, its holding focused on the
cooperation clause of the policy at issue and the common interest among the insurer and the insured.
Id. at 327-28. “Any condition in the policy requiring cooperation on the part of the insured is one
of great importance. . . . The basic purpose of a cooperation clause is to protect the insurer’s
interests and to prevent collusion between the insured and the injured party.” Id. at 327 (citations
omitted, emphasis in original). The cooperation clause in Waste Management required the insureds
to “give all such information and assistance as the insurers shall reasonably require.” Id. at 327-28.
As a result, the court said, the insureds could not withhold communications with defense counsel
representing them on a claim that the insurer had the ultimate duty to satisfy. Id. at 328. That duty
to cooperate continues for as long as insureds seek to enforce the terms of the policy. Id.
The principle announced in Waste Management is not, as the Trust characterizes it, a
“limited waiver” of attorney-client privilege (Pl.’s Opp’n at 10); rather, the court found the attorneyclient privilege had “no application” in that context. Waste Mgt., 579 N.E.2d at 327.
The Transport policy contains a broad duty of assistance and cooperation, consistent with
Transport’s position as an excess, not primary, carrier. It provides, in relevant part:
The Insured shall immediately advise the Company [Transport] of any accident or
occurrence which appears likely to result in liability under this Policy and of
subsequent developments likely to affect the Company’s liability hereunder. . . .
[T]he Company shall have the right and shall be given the opportunity to associate
with the Insured or its underlying insurer or insurers, or both, in the control, defense
and/or trial of any claims, suit or proceedings which, in the opinion of the Company,
involves or appears reasonably likely to involve the Company. If the company avails
itself of such right and opportunity, the Insured, any underlying insurer or insurers
and the Company shall cooperate in the control, defense and/or trial of such claims,
suits or proceedings, so as to affect a final determination thereof. Failure on the part
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of the Insured or the underlying insurer or insurers to cooperate shall relieve the
Company, at its option, of liability under this Policy.
.....
The Insured shall use due diligence and prudence to settle all such claims and suits which
in the exercise of sound judgment should be settled, provided, however, that the
Insured shall not make or agree to any settlement for any sum, in excess of the
underlying insurance, without the approval of the Company.
(First Am. Compl., Ex. C. ¶¶ 8, 9, emphasis added.) Notably, the Trust’s complaint alleges that it
has allowed claims, including pre-petition settlements, that have exhausted the underlying insurance,
which why the Trust is reaching to the excess insurance (including Transport), and that the Trust
must also anticipate future claims. (First Am. Compl. ¶¶ 28, 35.)
The above-quoted clauses in the Transport policy trigger a cooperation obligation that has
the same consequence as the clause in the Waste Management decision. “Even were the express
words ‘duty to cooperate’ omitted from the contract, such a duty could reasonably be inferred based
merely on principles of fairness and good faith.” Waste Mgt., 579 N.E.2d at 332 (suppl. op. on
denial of reh’g). Illinois law, therefore, directs that there is no attorney-client privilege for the Trust
to assert against Transport for communications relating to the underlying claims.6
The Trust argues three reasons why Waste Management should not apply. First, it argues
that the Trust is not bound by the cooperation clause in the Transport policy because the Trust was
not the original contracting party and was not the one who agreed to the cooperation clause. (Pl.’s
Opp’n at 11.) The Trust’s only claim to coverage under the Transport policy, however, is by virtue

6

That result is consistent with a conclusion reached by a district court in a similar situation
without referring to the Waste Management decision. UNR Indus., Inc. v. Contl. Ins. Co., No. 85 C
3532, 1992 WL 51708 at *4 (N.D. Ill. March 6, 1992) (applying duty of cooperation to asbestos trust
to compel trust’s production of claims analysis to excess insurer).
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of its appointment as successor to ARTRA Group’s insurance coverage. (First Am. Compl. ¶ 24;
Plan § 6.6.) If it is a successor to ARTRA Group’s rights under the policy, it succeeds also to
ARTRA Group’s obligations under that policy.
Second, the Trust argues that Transport is “estopped” from invoking the cooperation clause
because it has denied liability under the policy. (Pl.’s Opp’n at 10.) The Trust does not cite any
authority to support that argument, and it is contrary to both the letter and spirit of the Waste
Management decision. In Waste Management, both parties had filed declaratory judgments seeking
a declaration of rights under the policy at issue, and the insurer denied coverage in its answer to the
insured’s complaint, as Transport has here. Waste Mgt., 579 N.E.2d at 325. The insured’s
cooperation obligation, the Illinois Supreme Court stated, continues for as long as the insured is
asking the insurers “to perform their end of the bargain” (i.e., pay the claims). Id. at 328. “The fact
that the parties are now adverse concerning the interpretation of such [policy] terms does not negate
[the] insured’s contractual duty.” Id. Here, the obligation to provide information arises from the
fact that the Trust (which holds itself in the place of the insured) seeks to enforce the terms of the
policy to make Transport pay the claims that the Trust has assumed pursuant to the Plan.
Third, the Trust argues that its nature as a 524(g) trust means that it does not have a
“common interest” with Transport, unlike the insured and the insurer in Waste Management, who
had a common interest in defeating or settling the claim against the insured. (Pl.’s Opp’n at 10-11.)
The court in that case concluded that communications between the insured with its defense counsel
were “of a kind reasonably calculated to protect or to further those common interests.” Waste Mgt.,
579 N.E.2d at 328. Here, the Trust argues, its fundamental mission is to be sure that it is in a
“financial position to pay, present claims and future demands that involve similar claims in

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substantially the same manner,” and not to defend claims. Thus, it argues, its counsel does not act
for the mutual benefit of both the insured and the insurer. (Pl.’s Opp’n at 11-12, quoting 11 U.S.C.
§ 524(g)(2)(B)(ii)(V).)
The Trust acknowledges, however, that it is charged with resolving and paying only “valid”
asbestos claims. (Pl.’s Opp’n at 12 (emphasis added).) As Transport notes, that the Trust acts for
the benefit of valid claim holders means that it does not act for the benefit of holders of invalid
claims. (Def.’s Reply at 10.) In fact, the Trust Agreement provides:
The Asbestos Trust shall have all defenses, cross-claims, offsets, and recoupments,
as well as rights of indemnification, contribution, subrogation, and similar rights,
regarding Asbestos Personal Injury Claims that [ARTRA] or any successor of
[ARTRA] have or would have had under applicable law or under any agreement
related thereto.
(Titus Aff., Ex. L., Trust Agreement § 1.4(b).) The TDPs establish procedures to defend and
arbitrate claims brought against the Trust, as well as processes for expedited and individual claims
analysis. (See, e.g., Titus Aff., Ex. N § 7.5.) The Transport policy anticipates that the insured will
settle claims “which in the exercise of sound judgment should be settled,” provided, however, that
the insured not settle in excess of the underlying insurance without Transport’s approval. (First Am.
Compl., Ex. C. ¶ 9.) Indeed, the Trust’s interest is arguably closer to the insurer’s than an insured’s
customarily is, because the Trust must take care not to dissipate its financial resources on
questionable claims so that it will be in a position to pay both present and future valid claims.
The Trust is not materially different from the insured in Waste Management. It cannot assert
an attorney-client privilege over communications regarding the handling and settlement of
underlying claims against an insurer that it alleges must pay those claims.

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2.

The Trust’s and its counsel’s assertion of work-product protection

The Trust also asserts that the work-product protection protects three documents, FGA 1416,
FGA 1449-52 and FGA 1476-79. (Pl.’s Opp’n, Ex. B.) Unlike the attorney-client privilege, the
claim of work-product protection is governed by federal law. See Fed. R. Civ. P. 26(b)(3). The
doctrine protects “documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). At its core, the work-product
doctrine shelters the mental processes of an attorney, providing a privileged area in which the
attorney can analyze and prepare a client’s case. U.S. v. Nobles, 422 U.S. 225, 238 (1975). The
doctrine exists to “shield[] materials that are prepared in anticipation of litigation from the opposing
party. . . .” Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 767-68 (7th Cir. 2006).

Courts have concluded that an insured or its counsel cannot assert work-product protection
for materials prepared for the underlying litigation when they are sought by an insurer called upon
to indemnify for the underlying claim.
When work product is prepared for litigation in which multiple parties have an
interest, such as an insurance company and its insured or an indemnitor and
indemnitee pursuant to contract, the work product is not protected from discovery
in a subsequent adversary proceeding between the parties that, at the time of the
underlying litigation, had a common interest. Since the work-product protected
documents were prepared for each party to the common interest, how could one
preclude the other from access thereto?

Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, vol. 2, 1023 (5th
ed., ABA 2007) (citing cases including Abbott Labs. v. Alpha Therapeutic Corp., 200 F.R.D. 401,
410 (N.D. Ill. 2001)).
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Of course, work product prepared by the Trust’s counsel for this litigation against Transport
is not covered by a common interest with Transport, but Transport is not seeking any such materials.
The documents as to which the Trust and its counsel assert work-product protection do not deal with
this litigation. Rather, they deal with the Trust’s handling of settled claims, and settlement is a
matter covered by the cooperation clause of the Transport policy.
Therefore, the Trust’s objections to producing documents relating to claims handling and
evaluation and to pre-petition settlements are overruled.7

B.

Documents related to the drafting and determination of the TDPs

The disputed documents in this category are communications made during the pendency of
the bankruptcy proceeding and prior to the effective date of the Trust relating to the formulation and
negotiation of the TDPs and scheduled values of payments to claimants. (Def.’s Mem. at 5; Titus
Aff., Ex. A at 9-19.; Pl.’s Opp’n, Ex. A.) In response to the subpoena served by Transport, F/G
asserted attorney- client privilege over communications with the Creditors Committee (its former
client) and LAS (the claims forecaster retained by the Committee), and also asserted common
interest protection for communications among the Creditors Committee, F/G, ARTRA Group and
the Future Claimants’ Representative. (Titus Aff., Ex. H ¶¶ 6-8, Ex. I.) It appears that F/G has now
produced documents reflecting communications that included representatives of ARTRA Group.8

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This includes documents like FGA 144 and FGA 1495, which are emails about pre-petition
settlements that were not listed on the Trust’s logs, but were listed on Transport’s log and included
in the supplemental documents provided for in camera review pursuant to the court’s September 7,
2011 order.
8

Obviously, any communications with ARTRA Group about the underlying claims cannot
be withheld from ARTRA Group’s insurer. Any such documents that F/G has not produced to
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The remaining issue is whether the attorney-client privilege can be asserted on behalf of the
dissolved Creditors Committee, and if so, whether that privilege protects the documents from
production here. Again, the application of attorney-client privilege is determined by Illinois law,
which holds that “it is the privilege, not the duty to disclose, that is the exception.” Waste
Management, 579 N.E.2d at 327.
A creditors committee has the statutory authority to retain counsel and other professionals
to assist it with its work. See 11 U.S.C. §§ 328, 1103. The attorney-client privilege has been
recognized for communications between a creditors committee and its counsel during litigation with
an adversary of the creditors committee and during negotiation of a reorganization plan. See, e.g.,
In re Subpoenas Duces Tecum, 978 F.2d 1159 (9th Cir. 1992); In re Refco, Inc., 336 B.R. 187, 197
(Bankr. S.D.N.Y. 2006) (collecting authorities).
Here, however , the Creditors Committee no longer exists. A threshold question is: who now
is the holder of the attorney-client privilege as to the Creditors Committee’s communications with
its counsel, for purposes of asserting that privilege or waiving it? It is not F/G because the privilege
belongs to the client, not the attorney. In re Marriage of Decker, 606 N.E.2d 1094, 1101 (Ill. 1992);
Hayes v. Burlington N. & Sante Fe Ry. Co., 752 N.E.2d 470, 474 (Ill. App. 1st Dist. 2001). The
Trust is not claiming that it holds the Creditors Committee’s privilege. On the contrary, it
vigorously argues the converse: that its actions in this lawsuit cannot waive the privilege held by the
Creditors Committee because the Trust is a different entity that reflects the interests of both the prepetition creditors and the future asbestos claimants. (Pl.’s Opp’n at 7-8.) Further, it argues, because
the Committee no longer exists, even the participation of former Creditors Committee members on

Transport must be produced.
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the current Trust Advisory Committee cannot waive the privilege that belonged to the Creditors
Committee. (Id.) If the Trust disclaims the authority to waive the privilege, it cannot claim the
authority to assert it. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348-49
(1985) (noting that if an agent has authority to assert a corporation’s attorney-client privilege the
agent also has authority to waive it).
Although there are few decisions on point, Transport’s argument that the privilege died with
the Creditors Committee has some support. A bankruptcy court in this district concluded that a
creditors committee’s attorney-client privilege ceases to exist upon confirmation of the plan when
the committee ceases to exist. In re JMP Newcor Intl., Inc., 204 B.R. 963, 964 (Bankr. N.D. Ill.
1997) (holding that privilege no longer exists but attorney opinion work product of creditors’
committee counsel may be protected). On the other hand, another bankruptcy court permitted a
litigation trust formed pursuant to a reorganization plan to assert attorney-client privilege regarding
a report that had been prepared for the creditors committee when the committee was investigating
possible preference and fraudulent conveyance claims. In re Hardwood P-G, Inc., 403 B.R. 445
(Bankr. W.D. Tex. 2009). In that case, however, the terms of the plan expressly provided that “the
Litigation Trust shall be deemed to be a successor-in-interest to the Committee . . . .” Id. at 451.
Here, F/G and the Trust have not pointed to any such term in the Plan, and, as noted above, the Trust
disclaims control over the Committee’s privilege. Also, the Hardwood case involved a very
different situation: the adversary seeking the report was not an insurer of the debtor trying to find
out information about the valuation of the claims it is asked to pay; rather, the party seeking
production was apparently one of the subjects of the report.
Another decision holding that the attorney-client privilege survived the dissolution of a

17

creditors committee was based solely on analogy to an Ohio statute providing that the privilege
survives the dissolution of a corporation. Off. Comm. of Admin. Claimants v. Bricker, No. 05 C
2158, 2011 WL 1770113 (N.D. Ohio May 9, 2011). Again, F/G and the Trust have not argued that
there is any comparable Illinois statute. Indeed, as F/G acknowledges, authorities hold that,
generally, the attorney-client privilege does not survive the demise of a corporation.9
F/G has submitted affidavits from former members of the Creditors Committee expressing
their hope and expectation that their confidential communications with F/G and LAS would remain
privileged. (F/G Suppl. Mem., Exs. A-F.) But although an inanimate entity (like a corporation or
the Creditors Committee) speaks through its agents, the attorney-client privilege belongs to the
entity, not the individual who made the communication. The expectation of an individual officer
that the communications would remain privileged is not controlling. See Weintraub, 471 U.S. at
348.
F/G has failed to establish that, in this case, the attorney-client privilege that belonged to the
Creditors Committee survived the dissolution of that Committee.10
Additionally, the Trust, which is the co-creation of the Creditors Committee and is the
mechanism by which the asbestos creditors’ claims are paid, has put the TDPs at issue in this case.

9

See F/G Suppl. Mem. at 4 (citing Edgewater Med. Ctr. v. Rogan, No. 04 C 3579, 2010 WL
2711448 at *5 (N.D. Ill. July 6, 2010) (noting in dicta that attorney-client privilege does not survive
death of corporation); TAS Distribg. Co. v. Cummins, Inc., No. 07-1141, 2009 WL 3255297 at *1-2
(C.D. Ill. Oct. 7, 2009) (collecting cases holding attorney-client privilege does not survive
dissolution of corporation); Gilliland v. Geramita, No. 05 C 1059, 2006 WL 2642525 at *3 (W.D.
PA Sept. 14, 2006) (finding that non-operating defunct corporation had no current management
personnel with authority to assert attorney-client privilege of corporation).
10

This is not a ruling that the privilege can never survive the dissolution of a creditors
committee. Rather, under the facts presented to this court, F/G has failed to carry its burden of
showing that the privilege survived.
18

The TDPs set out the procedures for processing claims for damages from asbestos exposure, and for
the claimants that chose expedited review, the Scheduled Values that are to be paid for certain types
of claims. For example, “Lung Cancer (Level V)” has a scheduled value of $40,000. (See Titus Aff.,
Ex. N at 21-24.) The Trust seeks a judgment that Transport must pay claims that have been allowed
pursuant to the TDP procedures in the amounts set out in the Scheduled Values established by the
TDPs. In fact, the Trust moved for partial summary judgment on its claim that Transport is required
by Seventh Circuit precedent to pay the full value of allowed claims, i.e., the values set forth in the
TDPs. (Pl.’s Mem. Mot. Partial Summ. J. (citing UNR Indus., Inc. v. Contl. Cas. Co., 942 F.2d 1101
(7th Cir. 1991)). [Dkt 65-1.]11
The claims allowed pursuant to the TDPs exceed the underlying insurance, notwithstanding
the fact that the Transport policy gives Transport the right to approve any settlement in excess of
the underlying insurance. Transport has a right to discover how the Scheduled Values that it is being
asked to pay were negotiated and determined, including to what extent they are or are not consistent
with the limitations of the Transport policy.
Accordingly, F/G’s objection to producing documents relating to the negotiation or
formulation of the TDPs on the basis of the Creditors Committee’s attorney-client privilege is
overruled.12

11

Transport disputes that the Trust is entitled to partial summary judgment. (Def.’s Opp’n
Pl.’s Mot. Partial Summ. J. at 1 (citing Plan ¶ 6.13).) [Dkt 77.] No decision has yet been issued by
the District Judge on that motion.
12

A handful of documents are communications from members of the Creditors Committee
to F/G after the confirmation of the Plan. These documents relate to pre-petition claims and
settlements and must also be produced.
19

C.

The assertion of common interest privilege

Citing a “common interest” privilege, the Trust and F/G have resisted production of some
communications among the Trust or the Creditors Committee or F/G with the Future Claimants’
Representative on the subjects of claims handling, pre-petition settlements or the TDPs. For
example, FGA 1400 is an email from Dan Relles of LAS to Lawrence Levine (the Future Claimants’
Representative’s expert) dated December 11, 2004, attaching a handout with calculations and charts
on tort liability estimates. F/G apparently claims “Common-interest communications regarding TDP
values” as the reason for the privilege. (Titus Aff., Ex. A at 18.)
The “common interest” in this context does not of itself create a protection; it extends an
existing privilege to allow protected communications to be shared with a third party who shares a
common interest. “The common interest privilege is not an independent basis for privilege but an
exception to the general rule that no attorney-client privilege attaches when confidential
communications are communicated in the presence of or to third parties. . . . As such, the common
interest privilege assumes the existence of a valid underlying privilege.” Edna Selan Epstein, The
Attorney-Client Privilege and the Work-Product Doctrine, vol. 1, 274 (5th ed., ABA 2007).
Because there is no underlying privilege to prevent production of those documents to Transport, the
fact that a document on those subjects was also shared with the Future Claimants’ Representative
does not create a privilege. Accordingly, document FGA 1400 and its attachment (which is not
Bates labeled) must be produced, as must any other documents on those subjects for which the same
“common interest” privilege is asserted.

20

II.

The Trust’s motion to compel
A.

Background

In its motion, the Trust seeks to compel Transport to produce a number of documents relating
to reinsurance of the Transport policy. (Pl.’s Mot. at 1.) Transport obtained insurance from one or
more reinsurers to cover some of its liability under the Transport policy. According to Brian LaJoie,
Assistant Vice President of Claims for Transport, Transport’s reinsurers are ultimately liable for a
portion of any liability payments made under the Transport policy. (Def.’s Opp’n, Ex. 1, Aff. Brian
LaJoie ¶¶ 1, 3.) [Dkt 111-1.]13
In 1997, Transport retained the law firm Lord Bissell & Brook (“LBB”) to provide legal
advice and representation to Transport regarding coverage issues related to ARTRA Group’s (and
later, the Trust’s) claims for coverage for asbestos claims under the Transport policy. (LaJoie Aff.
¶ 4.) After ARTRA Group filed for bankruptcy in 2002 and through the filing of this lawsuit, LBB
provided legal advice and representation in connection with the issue of coverage, including
settlement negotiations with counsel for the ARTRA Group’s creditors and later the Trust.14 (Id.
¶¶ 5-7.) LBB also represented Transport in lawsuit filed by Muralo Company, Inc., against ARTRA
Group and its insurers, including Transport. (Id. ¶ 5.)
After filing the present lawsuit, the Trust served broad discovery requests asking Transport

13

Mr. LaJoie also submitted a supplemental affidavit. [Dkt 125.]

14

On July 17, 2003, attorney A. Kelly Turner of LBB entered an appearance in ARTRA
Group’s bankruptcy proceeding on behalf of Great American Insurance Company, “as managing
agent on behalf of Transport Indemnity Company with respect to certain claims made under an
excess liability policy issued to [ARTRA Group].” (Turner Appear., In re ARTRA Group, Inc.)
[Bankr. N.D. Ill., No. 02 B 21522, dkt 452.] As discussed above, Transport has assumed the
liabilities for the policy issued by Transport Indemnity Company.
21

to produce, inter alia, all documents and communications related to all reinsurance agreements, and
all communications with reinsurers regarding ARTRA, the Trust, and insurance coverage for
asbestos claims against ARTRA or the Trust. (Pl.’s Mot., Ex. A, Doc. Requests ¶¶ 7, 9.) The Trust
does not attempt to argue that it is an insured under Transport’s reinsurance agreements. Under
Illinois law, a reinsurance agreement is distinct from and unconnected with the original insurance
policy; the original policy holder is not a party to the reinsurance agreement. In re Liquidations of
Reserve Ins. Co, 524 N.E.2d 538, 540-41 (Ill. 1988). Rather, the Trust argues that it is entitled to
communications between Transport and its reinsurers under the general rules applicable to discovery
between adversaries, because, it argues, the information is relevant and not privileged.
Transport claims attorney-client privilege and work-product protection for its
communications with its reinsurers. (LaJoie Aff. ¶ 3.) It also argues that information about
reinsurance is not relevant to any disputed issue in this lawsuit. (Def.’s Opp’n at 2-7.) Transport
submitted the disputed documents for in camera inspection.15 As with Transport’s motion, the
parties have narrowed the disputes somewhat.16

B.

Relevance

The Trust argues that discovery regarding reinsurance is relevant because it would shed light
on Transport’s view of certain issues in the case, aid in policy interpretation, and possibly contain

15

The disputed documents are described in Mr. LaJoie’s affidavits and on Transport’s
privilege logs. (LaJoie Aff.; Suppl. LaJoie Aff.; Suppl. Aff. Kevin Titus, Ex.1 [dkt 126].)
16

For example, the Trust no longer seeks the actual reinsurance policies, and has agreed to
allow information about the establishment or amount of reserves to be redacted. (Pl.’s Suppl. Reply
at 7-8.)
22

admissions.

(Pl.’s Mot. at 3-6.)

Transport responds that reinsurance information and

communications are irrelevant and will not illuminate any contract interpretation issue or affirmative
defense in the case. (Def.’s Opp’n at 2-7.)
There is an important difference between Transport’s motion (discussed in the first part of
this opinion) and the Trust’s motion. Transport seeks information about the handling of asbestos
injury claims brought against its insured for which Transport is asked to pay; it does not seek
communications revealing the Trust’s counsel’s (that is, F/G’s) view of the Trust’s claims against
Transport in this lawsuit. The Trust’s motion, in contrast, seeks Transport’s communications with
its reinsurers specifically for the purpose of learning Transport’s “admissions regarding the matter
in dispute” in this lawsuit. (Pl.’s Reply at 1.) The Trust wants “Transport’s admissions as to the
meaning of the policy,” i.e., the subject of some of Transport’s affirmative defenses in this lawsuit.
(Id. at 2.)
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense. ” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” Id. The standard set out in the present Rule 26 is different from the standard in Rule 26
as it existed when the Supreme Court decided Herbert v. Lando, 441 U.S. 153 (1979), a case cited
by the Trust. (Pl.’s Mot. at 4.) The version of Rule 26 in effect in 1979 set out a broader scope in
which discovery about the “subject matter” of the complaint was allowed. In 2000, Rule 26 was
narrowed to its present formulation: “relevant to any party’s claim or defense.” Under current Rule
26, discovery about the subject matter involved in the action but not relevant to an existing claim
or defense can only be taken upon order of the court for good cause shown. No such order has been

23

entered in this case.
Some of the cases the parties discuss regarding the discoverability of reinsurance information
pre-date that change in Rule 26, and must be viewed with that change in mind. See, e.g., Allendale
Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D. 132, 139-140 (N.D. Ill. 1993) (deciding relevance
of reinsurance communications on basis of former version of Rule 26(b)(2)). But under either
version of Rule 26, the Trust’s requests for all documents and communications related to Transport’s
reinsurance agreements is too broad. See Great Lakes Dredge and Dock Co. v. Com. Union
Assurance Co., 159 F.R.D. 502, 504 (N.D. Ill. 1995) (holding that a request for “all documents”
relating to reinsurance is too attenuated to a policy interpretation dispute to be discoverable); see
also U.S. Fire. Ins. Co. v. Bunge N. Am., Inc., 244 F.R.D. 638, 642-43 (D. Kan. 2007) (noting
conflicting authorities and concluding that discoverability of communications with reinsurers should
decided on case-by-case basis considering particular claims and defenses at issue).17
As noted above, Transport has withheld a relatively small number of documents, which the
court has reviewed in camera in light of the issues in this case. For some of the documents,
relevance is not the deciding issue because they do, in fact, involve information relevant to the
claims and defenses in this case. Rather, the issue is whether they are protected by attorney-client
privilege or work-product protection.

17

Thus, the Trust’s Interrogatory 8, requesting that Transport “[i]dentify each person with
knowledge of Your Reinsurance Agreements, and Describe each Person’s knowledge and the basis
for such knowledge” (Pl.’s Mot., Ex. A), goes beyond what is relevant to the issues in this dispute
between Transport and the Trust. To the extent the Trust is still seeking to compel any further
information responsive to Interrogatory 8, the motion is denied.
24

C.

Attorney-client privilege and work-product protection

Transport argues that, even if the documents it has withheld are relevant, they are protected
by attorney-client privilege or work-product protection, or both. It also argues that any protected
communications or documents shared with its reinsurers remain protected because of the common
interest between Transport and its reinsurers. (Def.’s Opp’n at 8-11.) The Trust argues that the
withheld documents are no more than routine communications in the business of insurance, and that
the involvement of an attorney in their preparation does not, of itself, shield a business
communication. (Pl.’s Mot. at 7-9.) The Trust has not, of course, seen the documents, so its
characterization of the documents is based on Transport’s descriptions in its privilege logs and
inferences it draws from those descriptions.
As discussed above in connection with Transport’s motion, the claim of attorney-client
privilege in this action is determined with reference to Illinois state law, while the work-product
protection is determined by federal law, particularly Federal Rule of Civil Procedure 26(b)(3).
In Illinois, “(1) [w]here legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by
himself or by the legal adviser, (8) except the protection may be waived.” In re Himmel, 533 N.E.2d
790, 794 (Ill. 1988) (internal quotations omitted). As noted earlier, in Illinois, “it is the privilege,
and not the duty to disclose, that is the exception.” Waste Mgt., 579 N.E.2d at 327.
“The work-product doctrine protects documents prepared by attorneys in anticipation of
litigation for the purpose of analyzing and preparing a client’s case.” Sandra T.E. v. S. Berwyn Sch.
Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). Work product may be discoverable where the moving

25

party demonstrates a substantial need, but the court must protect an attorney’s “mental impressions,
conclusions, opinions, or legal theories,” commonly referred to as opinion work product. Fed. R.
Civ. P. 26(b)(3)(A), (B). The burden is on the party claiming work-product protection to show that
the document was created in anticipation of litigation. See Logan v. Com. Union Ins. Co., 96 F.3d
971, 976-77 (7th Cir. 1996); Binks Mfg. Co. v. Natl. Presto. Indus., Inc., 709 F.2d 1109, 1119 (7th
Cir. 1983). In determining whether the protection applies, courts look to whether “in light of the
factual context ‘the document can fairly be said to have been prepared or obtained because of the
prospect of litigation.’” Id. (quoting Binks Mfg., 709 F.2d at 1119) (emphasis in original).
Documents that do not contain or refer to work product prepared by an attorney or other agent of
a party to aid in pending or anticipated litigation, and which were generated in the ordinary course
of business, are discoverable. Allendale, 152 F.R.D. at 136.
The basic principles are straightforward.

Routine business communications are not

protected, even if an attorney was involved in their preparation.
The public policy issue behind this result is that insurance companies, which are in
the business of reviewing, processing and adjusting claims, should not be permitted
to insulate the factual findings of its claims investigation by the involvement of an
attorney to perform such work. Therefore, the factual results of such an investigation
are discoverable in cases challenging the denial of the claim, to the same extent as
if such factual investigation was conducted by its own adjusters or claims
department.

Chi. Meat Processors, Inc. v. Mid-Century Ins. Co., No. 95 C 4277, 1996 WL 172148 at * 3 (N.D.
Ill. Apr. 10, 1996). On the other hand, confidential communications for the purpose of legal advice
and documents created in anticipation of litigation are protected. The question is: on which side of
that line does each disputed document fall, in light of the factual background presented to the court?
“It is often difficult to determine with precision when a particular attorney's work is ‘in anticipation
26

of litigation’ rather than ‘an investigative report developed in the ordinary course of business.’”
Binks Mfg., 709 F.2d at 1120. That is particularly so in the insurance context because “[i]t is the
very nature of an insurer’s business to investigate and evaluate the claims of its insured, and the fact
that the investigation and evaluation continues after litigation commences is not conclusive proof
that material has been created to aid in that litigation.” Allendale, 152 F.R.D. at 136 (internal
citation omitted).
If one of the disputed documents at issue here is determined to be privileged or protected,
the fact that the work product or legal advice was shared with Transport’s reinsurer does not
constitute a waiver of the privilege or protection, because of the common interest between Transport
and its reinsurer regarding ARTRA Group’s and the Trust’s claims. See Waste Mgt., 579 N.E.2d
at 328 (recognizing the insured and insurer’s common interest either in defeating or settling a claim
waged against the insured); see also U.S. v. BDO Seidman, LLP, 492 F.3d 806, 815-16 (7th Cir.
2007) (analyzing common interest extension of attorney-client privilege); Beneficial Franchise Co.
v. Bank One, N.A., 205 F.R.D. 212, 216 (N.D. Ill. 2001) (applying common interest extension to
work-product analysis); Minn. Sch. Bds. Assn. v. Employers Ins. Co. of Wausau, 183 F.R.D. 627,
631-32 (N.D. Ill. 1999) (same). Although the Trust argues that the nature of a reinsurance contract
precludes application of the common interest extension, the shared interests of the reinsurer and
insurer are not so materially different from the shared interests of a direct insurer and its insured as
to conclude that the common interest does not apply. Likewise, the common interest doctrine
protects against a waiver resulting from an insurer’s disclosure of work-product protected
information to its reinsurers; disclosure to a reinsurer does not increase the risk of disclosure to the

27

insurer’s adversary. Minn. Sch. Bds., 183 F.R.D. at 631.18

D.

The disputed documents

The Trust correctly observes that the burden is on Transport to show that each of the disputed
documents deserves protection. (Pl.’s Suppl. Reply at 2.) To make that showing, Transport
submitted the two affidavits by Mr. LaJoie discussed above, which describe Transport’s retention
of LBB as early as 1997 regarding the coverage issues about the Transport policy. The Trust has
not disputed any of the facts in Mr. LaJoie’s affidavits. The involvement of a lawyer does not,
however, confer protection upon routine business documents and communications. Protection or
privilege depends on the nature and purpose of the communication or document.
With these principles in mind, the disputed documents are ruled upon as follows. (Tab
references are to Transport’s privilege log and supplemental privilege log.)

18

This court respectfully disagrees with dicta in Allendale questioning whether Illinois
courts would apply the common interest extension of attorney-client privilege in such a situation.
See Allendale, 152 F.R.D. at 140. The only Illinois authority cited in Allendale for that comment
is In re Liquidations of Reserve Ins. Co., 524 N.E.2d 538 (Ill. 1988), which addressed whether
reinsurance was like primary insurance for purposes of claim prioritization in liquidation
proceedings; it did not analyze the common interest doctrine or any other privilege issue.
A conclusion that there is no common interest extension of the privilege between Transport
and its reinsurers would leave no ability for Transport to provide its reinsurers with its attorneys’
candid evaluations of the merits of disputed issues in the coverage litigation or to make
recommendations for settlement or otherwise discuss litigation strategy. Such a conclusion would
be at odds with the Illinois Supreme Court’s emphasis in Waste Management on the obligation of
cooperation an insured owes the insurer who may be required to pay the claim.
This court also agrees with the court in Minnesota School Boards that the comment in
Allendale is distinguishable dicta because the documents at issue in Allendale did not rise to a level
meriting protection. Minn. Sch. Bds., 183 F.R.D. at 632 (quoting Allendale, 152 F.R.D. at 136-37).
28

Tabs A, C, G, H; Suppl. Tab 1
(TIC 104-108, TIC 7545-49, TIC-R 38-45, TIC-R 48- 53, TIC 67-72.)
Four of these documents are the same report from Transport to its reinsurers dated December
18, 2006; one adds a December 26, 2007 update. Mr. LaJoie states that the document was drafted
substantially by LBB attorneys at his request, and he finalized it to provide the insurers with an
update of the ARTRA Group bankruptcy, related proceedings and settlement discussions. (LaJoie
Aff. ¶¶ 4, 8.)19
Having reviewed the documents, the court agrees that they are protected by attorney-client
privilege, work-product protection and the common interest extension of those to communications
with the reinsurers. These documents are not, as the Trust characterizes them, routine claims
handling reports. They are descriptions of proceedings in the bankruptcy proceedings and Muralo
lawsuit, including evaluation and recommendations.

They describe settlement negotiations

concerning the ARTRA Group’s claim against Transport that evolved into this lawsuit. They reflect
counsel’s mental impressions and recommendations about settlement and litigation strategy.
By 2006, LBB had been representing Transport in the bankruptcy proceedings for three
years, the same proceedings in which the Trust’s counsel here was representing the Creditors
Committee. The Trust’s argument that these documents “were created long before Transport could
have anticipated litigation” (Pl.’s Reply at 8), borders on frivolous in light of the history here: the
many asbestos claims that preceded and led to ARTRA Group’s filing for bankruptcy, and the
prolonged bankruptcy proceedings begun with the filing in 2002 that led to this lawsuit.

19

Work product is not limited to documents prepared by an attorney. It extends to
documents prepared in anticipation of litigation “by or for another party or its representative
(including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ.
P. 26(b)(3)(A).
29

The Trust’s motion for production of these documents is denied.

Tabs B, F
(TIC 143-44, TIC-R 23-24)
These are copies of the same document: Transport’s claim handler’s correspondence to
Transport’s reinsurers, dated April 16, 2003, described as a supplemental reinsurance notice and
enclosing a settlement demand made to Transport from ARTRA’s attorneys. (The material from
ARTRA’s attorneys is not attached here, but is included in Supplemental Tab 5 as TIC R 25-32.)
It is a notice and transmittal, except for the last sentence of the second paragraph, which is work
product describing the actions that Transport will take in response to the demand.
These documents must be produced, with the last sentence in the second paragraph redacted
(beginning with “We” through “have”).

Tab D
(TIC-R 04-05)
This is a string of email correspondence to and from Mr. LaJoie and his colleagues,
discussing the filing of this lawsuit and Transport’s proposed response. It is work product. The
motion to compel is denied as to this document.

Tab E
(TIC-R 17-20)
This is a letter to Transport dated October 9, 2003 from LBB, then representing Transport
in the bankruptcy, discussing that proceeding and the Muralo lawsuit, and reflecting the advice and
strategy of counsel. It is protected by attorney-client privilege, work-product protection and the

30

common interest extension of those to communications with the reinsurers. The motion to compel
is denied as to this document.

Suppl. Tab 2
(TIC 8215-8217; TIC 9034-9043)
The first of these is an email transmitting the second, which is a copy of Transport’s internal
guidelines for billing and reporting to its reinsurers, and also including a general reference to
Transport’s reserves, including the ARTRA Group account. The guidelines simply describe a
format to be followed; they contain no information specific to the Trust’s coverage claim. Because
the Trust has agreed that Transport need not produce information regarding its reserves, and these
documents contain nothing relevant to any of the claims or defenses raised in this case, Transport
need not produce TIC 8215-8217 and TIC 9034-9043.

Suppl. Tab 3
(TIC-R 33; TIC-R 35; TIC-R 37; TIC-R 46-47)
These documents are spreadsheets and lists about Transport’s reserves for the ARTRA claim.
They contain no textual information about the claim, simply lists of amounts. Because the Trust has
agreed that it is not seeking any information about the establishment of the reserve or the amount
of the reserve, there is nothing in these documents that requires production.

Suppl. Tab 4
(TIC 145, TIC 146, TIC 147, TIC 152, TIC 4121, TIC-R 02-03, TIC-R 06, TIC-R
36)
31

TIC 152 and 4121 are two copies of a letter sent by Transport to its reinsurer, and TIC 145,
146 and 147 are notices sent by Transport to its reinsurers, all in 1997 about the fact that there have
been numerous claims filed against ARTRA. These are routine claims handling documents. The
reference to reserves may be redacted, as well as the last sentence of TIC 152 and 4121 (from “We”
to “time”) but the balance must be produced.
TIC -R 02-03 and 06-07 are two separate email chains inquiring about the amount of reserve.
Since the Trust has agreed not to seek information about the amount of the reserve, these documents
need not be produced.
TIC- R 36 is simply a cover letter apparently enclosing the December 2007 update.
Although the update is protected for the reasons described above, the cover letter is not. That must
be produced. However, the last sentence of the first paragraph, which refers to reserves, may be
redacted.

Suppl. Tab 5
(TIC 62; TIC 79; TIC 135; TIC 136; TIC 137; TIC 138; TIC 139; TIC 140; TIC 141;
TIC 142; TIC 148-49; TIC 150-51; TIC 6146; TIC-R 01; TIC-R 07; TIC-R 08-09;
TIC-R 10; TIC-R 11; TIC-R12; TIC-R 13-15; TIC-R 16; TIC-R 21-22, TIC 125-32.)
For the most part, these documents are simply requests for updated reports and cover letters
for the reports. Although the content of reports may be protected (as discussed above), there does
not appear to be protectable material in the requests or cover letters. They must be produced.
TIC R-25 is a letter from ARTRA Group’s then-counsel dated March 31, 2003 stating a
settlement demand and enclosing an spreadsheet apparently prepared by ARTRA Group’s
consultant, presumably supporting the demand. Transport advances no argument why that document

32

is protected. It must be produced.
The Trust’s motion is granted with respect to the documents in Supplemental Tab 5.

Suppl. Tab 6
(TIC 161; TIC 182; TIC 286; TIC 351; TIC 287-292; TIC 352-357; TIC
5144-5150.)
These documents reflect calculation of policy premiums. The Trust states that it is not
interested in premium amounts and numbers in worksheets, but wants any text. (Pl.’s Suppl. Reply
at 8.) There is no textual material in these documents. Transport is not required to produce the
documents in Supplemental Tab 6.

Suppl. Tab 7
(TIC-R 54-578)
These documents are Transport’s reinsurance contracts. The Trust has withdrawn its motion
with regard to the contracts themselves. (See Pl.’s Supp. Reply at 8.) Transport is not required to
produce the documents in Supplemental Tab 7.

33

CONCLUSION
For the foregoing reasons: (1) Defendant Transport Insurance Company’s Motion to Compel
Plaintiff and Frank/Gecker to Produce Documents [dkt 100] is granted to the extent it is not already
moot; (2) Plaintiff ARTRA 524(g) Asbestos Trust’s cross-motion for a protective order imbedded
in its opposition to Transport’s motion [dkt 112] is denied as moot; and (3) Plaintiff ARTRA 524(g)
Asbestos Trust’s Motion to Compel Production of Reinsurance Documents and Communications
[dkt 106] is granted in part and denied in part. The documents ordered produced pursuant to this
opinion may be designated “Highly Confidential” pursuant to the Stipulated Protective Order and
Addendum to the Stipulated Protective Order previously entered in this case. [Dkt 45, 135.] If any
party believes the documents require additional protection beyond that provided by the existing
Protective Order and Addendum, that party may move for further protection.

IT IS SO ORDERED.

__________________________________________
GERALDINE SOAT BROWN
United States Magistrate Judge

DATED: September 28, 2011

34