Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 2454

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel PNC Bank to Produce Insurance Policies and Related Communications [ECF No. 2417 ] is DENIED, in part. Signed by District Judge E. Richard Webber on 8/12/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

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Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs’ Motion to Compel PNC Bank to
Produce Insurance Policies and Related Communications [ECF No. 2417]. After conducting an
in camera review of documents provided by PNC Bank, the Court finds as follows.
The Court will not require disclosure of the communications between PNC Bank and its
insurers. As a preliminary matter, nothing contained in the communications is relevant 1 to the
claims or defenses in this matter, or more specifically, to the issues raised in post-judgment
motions. These communications include the opinions of attorneys and discussions between PNC
Bank and its insurers to keep the insurer informed on the details of the lawsuit and to determine
coverage under certain policies. This has no bearing on any matter pending before this Court.
See Potomac Elec. Power Co. v. Cal. Union Ins. Co., 136 F.R.D. 1, 3 (D.D.C. 1990) (finding
correspondence with insurance company lacks sufficient indicia of relevance); Gulf Ins. Co. v.
Skyline Displays Inc., No. 02-CV-3503(DSD/SRN), 2003 U.S. Dist. LEXIS 26511 at 13 (D.
Minn. Oct. 20, 2003) (same); Excelsior College v. Frye, 233 F.R.D. 583, 586 (S.D. Cal. 2006)
1

“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and (2) the fact is of consequence in determining the action.” Fed. R. Evid. 401.
1

(same). Further, many of the communications are protected by attorney-client privilege or the
work-product doctrine.
Missouri has recognized an insurer-insured privilege which falls within the attorneyclient privilege. State ex rel. Cain v. Barker, 540 S.W.2d 50, 53 (Mo. en banc 1976). 2 However,
it requires an existing insured-insurer relationship, where the insurer is obligated to defend and
indemnify the insured and the insured is obligated to report covered incidents to the insurer.
May Dep’t Stores Co. v. Ryan, 699 S.W.2d 134, 136 (Mo. Ct. App. 1985); see also Barker, 540
S.W.2d at 53. While the Court believes the policy3 behind the insurer-insured privilege extends
to situations such as this where an insured is required to report a covered incident to the insurer,
it declines to extend the insurer-insured privilege beyond the boundaries set by the Missouri state
courts when it is not necessary to do so.
For those communications protected by attorney-client privilege, generally a party waives
attorney-client privilege if communications are shared with a third party. However, there is no
waiver “where the third party shares a common interest in the outcome of the litigation and
where the communication in question was made in confidence.” Lipton Realty, Inc. v. St. Louis
Housing Authority, 705 S.W.2d 565, 570 (Mo. Ct. App. 1986). 4 It is undeniable the
communications were made in confidence as both PNC and the insurer signed confidentiality
agreements. PNC and its insurer also share a common interest in the outcome of the litigation.
2

Federal Rule of Evidence 501 states “in a civil case, state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.” Missouri laws on privilege govern in this case.
3
There are two justifications for the insurer-insured privilege recognized by Missouri courts. State ex rel. L.Y. v.
Davis, 723 S.W.2d 74, 75 (Mo. Ct. App. 1986). First, the communication is made to the insurer for the purpose of
transmitting it to an attorney for protection of the insured’s interest; thus, it should be protected similar to attorneyclient privilege. Id. The second justification is the insured can make a full report to the insurer without fear of
discovery by an adverse party. Id.
4
The common interest doctrine is generally applied in cases involving multiple defendants represented by different
attorneys who are establishing a common defense strategy. However, the language of the doctrine does not limit it
to those specific situations.
2

An insurer certainly does not wish for an adverse judgment against one if it’s insured, even when
there is a chance they will not have to provide coverage. The vast majority of the
communications between PNC’s legal counsel and its insurers are protected. Attached to this
order, as Exhibit A, is a list of each communication provided and the Court’s determination of
whether it is protected by attorney-client privilege. 5
The Court has reviewed each document submitted and determined all of the documents
lack relevance. Additionally, the Court has analyzed if each document is protected by attorneyclient privilege, and a large majority of the documents are protected. The Court will not require
disclosure of any of these communications. Those determined to be not privileged are not
relevant to the matters before the Court.
On the issue of imposition of sanctions, the Court will hear oral argument from the
parties on whether sanctions are appropriate and the appropriate amount of sanctions, if any.
The Court will hear argument on this issue at the post-judgment motions hearing schedule for
August 24-26, 2015.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel PNC Bank to Produce
Insurance Policies and Related Communications [ECF No. 2417] is DENIED, in part.
So Ordered this 12th day of August, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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Several of the documents are protected by the work-product doctrine as well. Federal Rule of Civil Procedure
26(b)(3) states “a party may not discover 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 . . . insurer, or agent).”
3

EXHIBIT A
A given communication may not be protected from disclosure for several principal reasons, nine
of which the Court has identified:
(1) the communication concerned only underlying facts, and the communication was not
shared in order to solicit legal advice;
(2) disclosure of the communication to a third party waived its protection;
(3) no attorney was involved with the communication and the communication did not
reflect privileged advice from an attorney;
(4) any attorney involvement was merely as a passive recipient of the communication;
(5) the attorney’s advice was not legal in nature;
(6) the communication was not made for the purpose of obtaining the attorney’s legal
advice;
(7) the communication was made by an employee to whom the privilege does not extend;
(8) the communication was not intended to be confidential; and
(9) the document is attorney work produce, but the party seeking production has
demonstrated that the communication is discoverable.
Next to each ruling lists a corresponding number to the principle referenced.
Document
Letter 10-14-09
Letter 10-26-09
Letter 10-26-09
Letter 10-27-09
Letter 10-27-09
Letter 10-29-09
Letter 10-29-09
Letter 11-11-09
Letter 12-10-09
Letter 12-18-09
Letter 01-05-10
Letter 04-22-10
Letter 01-14-15

Ruling
Not Privileged
Work Product
Work Product
Not Privileged
Not Privileged
Not Privileged
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4

Reasoning
1

1, 6
1, 6
1, 6
1, 6
1, 6
1, 6
1, 6
1, 6

Letter 01-22-15
Letter 01-22-15
Letter 01-27-15
Letter 02-10-15
Letter 03-10-15
Letter 03-10-15
Letter 03-17-15
Letter 03-30-15
Letter 07-09-15
OPW 1
OPW 3
OPW 5
OPW 19
OPW 49
OPW 51
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OPW 172
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OPW 226
OPW 229
OPW 233
OPW 236
OPW 239
OPW 243
OPW 245
OPW 250
OPW 256
OPW 262
OPW 264
OPW 266
OPW 271

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Copy of Court’s Opinion
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Not Work Product
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OPW 272
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OPW 375
OPW 387
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OPW 396
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OPW 438
OPW 439
OPW 440
OPW 442
OPW 444
OPW 458

Work Product
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Copy of Court’s Opinion
Copy of Court’s Opinion
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OPW 488
OPW 490
Email 1
Email 3
Email 8
Email 9
Email 11
Email 13
Email 18
Email 21
Email 24
Email 29
Email 30
Email 31
Email 36
Email 37
Email 38
Email 46
Email 51
Email 55
Email 59
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Email 83
Email 84
Email 128
Email 130
Email 133
Email 135
Email 137
Email 140
Email 142
Email 143
Email 144

Work Product
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1
1
1

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1

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1
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Email 145
Email 149
Email 151
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Email 254
Email 257
Email 260
Email 261
Email 262
Email 263
Email 264
Email 271
Email 272

Work Product
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Email 286
Email 302
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Email 363
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Email 367
Email 376
Email 377
Email 383
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Email 401
Email 489
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1

Ins. Policy

1

Email 506
Email 508
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Email 557
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Email 563
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Email 573
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Email 582
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Email 603
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Email 630
Email 631
Email 633

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1

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Email 634
Email 637
Email 641
Email 643
Weav. 1
Weav. 6
Weav. 17
Weav. 19
Weav. 21
Weav. 24
Weav. 25
Weav. 28
Weav. 32
Weav. 36
Weav. 38
Weav. 43
Weav. 49
Weav. 54
Weav. 59
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Weav. 101
Weav. 104
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Weav. 118
Weav. 120

Work Product
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Weav. 123
E-Room 1
E-Room 3
E-Room 4
E-Room 5
Fees 1
Fees 2
Fees 3
Conf. Ag. 1
Conf. Ag. 2
Conf. Ag. 3
Conf. Ag. 4
Conf. Ag. 5
Conf. Ag. 6
Conf. Ag. 7
Conf. Ag. 8
Conf. Ag. 9
Conf. Ag. 10
Conf. Ag. 11
Conf. Ag. 12
Conf. Ag. 13

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