LIBERTY INTERNATIONAL UNDERWRITERS CANADA v. SCOTTSDALE INSURANCE COMPANY et al
Filing
115
MEMORANDUM OPINION AND ORDER granting in part and denying in part Defts' request for production of pltf's attorney-client privileged and work-product documents. By 12/19/2014 Pltf shall produce to Defts copies of the Bates-stamped documents identified herein. Defts' request for all other documents is denied. Signed by Magistrate Judge Joel Schneider on 12/10/2014. (drw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
LIBERTY INTERNATIONAL
UNDERWRITERS CANADA,
Plaintiff,
Civil No. 12-4934 (NLH/JS)
v.
SCOTTSDALE INSURANCE COMPANY,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This
Opinion
addresses
the
parties’
discovery
dispute
involving defendants’ request for documents plaintiff claims are
protected by the attorney-client privilege and/or work-product
doctrine. 1 Plaintiff Liberty International Underwriters Canada
(“Liberty”) is seeking to recover from Scottsdale $1 million
plus
attorney’s
fees
that
Liberty
paid
in
November
2011
to
settle a lawsuit wherein it was alleged that Liberty’s insured,
Tractel, Inc., started a fire at the Borgata. Defendants insist,
inter alia, that this lawsuit is barred by the terms of the
Settlement Agreement Tractel entered into with the Borgata. The
subject discovery dispute centers on defendants’ insistence that
they
are
attorneys
entitled
and
the
to
see
Liberty’s
attorneys
communications
representing
1
Tractel
with
its
regarding
The defendants are Scottsdale Insurance Company (“Scottsdale”) and Infinity
Access LLC (“Infinity”).
1
negotiations over the terms of the Tractel/Borgata Settlement
Agreement. Liberty argues the requested documents are protected
and do not have to be produced.
As will be discussed, the Court
decides that some but not all of the documents at issue should
be produced.
Background
On
September
23,
2007,
a
fire
occurred
at
construction site in Atlantic City, New Jersey.
the
Borgata
At the time,
the owners of the Borgata had hired Tractel to install window
washing scaffolding.
to Infinity.
Tractel, in turn, subcontracted the work
After the fire Borgata filed a complaint seeking
damages from the parties allegedly responsible for the fire,
including Tractel. (Hereinafter “Borgata litigation.”) Liberty
insured Tractel and paid its defense costs in the underlying
litigation
($769,383.58).
Eventually,
Borgata
and
Tractel
settled for $1 million and Liberty paid the settlement sum.
In
this action Liberty seeks to recover $1,769,383.58 from Infinity
and
Infinity’s
insurer,
Scottsdale,
which
represents
the
indemnity and defense costs Liberty paid on Tractel’s behalf in
the Borgata litigation.
In
August
2011,
Liberty
agreed
in
principal
million to settle Borgata’s claim against Tractel. 2
2
to
pay
$1
From that
On August 16, 2011, Borgata and Tractel filed with the Superior Court of New
Jersey Law Division, Atlantic County, a “Joint Notice of Settlement.” The
Notice advised the Court that the parties “reached an agreement in principle
2
time until November 2011, the attorneys for Borgata and Tractel
exchanged different drafts of a “Confidential Mutual Release and
Settlement
Agreement.”
Liberty
was
kept
abreast
of
the
negotiations by Tractel’s attorneys and its own counsel that it
separately
retained.
The
final
Settlement
Agreement
between
Tractel and the Borgata was signed on November 22, 2011.
Defendants
Agreement
allege
Tractel
that
assigned
pursuant
its
claims
to
and
the
terms
causes
arising from the Borgata fire to the Borgata. 3
of
of
the
action
Defendants also
cite to the language in the November 30, 2011 “Joint Stipulation
of Dismissal With Prejudice and Assignment of Claims Between
Plaintiff and Defendant Tractel, Ltd.” filed with the Superior
Court which reads:
Tractel and its insurers assign all claims and
causes of action they have or may have against any
defendant,
cross-defendant
and/or
third-party
defendant as a result of, arising from or related to
the September 27, 2007 fire at The Water Club,
including, but not limited to, the facts alleged in
the
Complaint,
as
amended,
Tractel’s
responsive
pleadings and/or Third-Party Complaints.
to settle all claims asserted against Tractel.” April 29, 2014 Letter Brief
(“LB”), Exhibit 1.
3
The actual assignment language in paragraph 5 of the Settlement Agreement
reads:
5. Extinguishment and/or Assignment of Tractel’s Claims
. . .
(b) Tractel and/or any insurer of Tractel, hereby
assigns any and all actions, causes of action,
claims, suits, … they have or may have against the
defendants … in the [Borgata] Litigation.
3
Based
on
the
Tractel/Borgata
assignment
language,
defendants argue that Liberty lacks standing to pursue this case
since the rights of Liberty’s insured, Tractel, were assigned to
the Borgata. Not unexpectedly Liberty denies this assertion and
argues, inter alia, it was not a party to the assignment and/or
Settlement Agreement and that Tractel lacked the authority to
assign
Liberty’s
rights
to
Borgata.
Defendants
respond
by
arguing, inter alia, that although Liberty was not a party to
the Settlement Agreement that contained the assignment, Liberty
was aware of and acquiesced in the execution of the Agreement.
On
June
28,
2013,
the
Honorable
Noel
L.
Hillman
denied
defendants’ Motion for Judgment on the Pleadings. 955 F. Supp.
2d 317 (D.N.J. 2013). Judge Hillman held, inter alia, that it
was unclear whether Tractel had the authority and permission to
include Liberty in the assignment provision.
Id. at 333.
Hillman
actual
also
held
that
“the
text
of
the
Judge
assignment
provision itself is unclear as to its intended scope.”
Id.
As
such, Judge Hillman noted, “the import of the assignment clause”
was not yet ripe for decision. Id. Judge Hillman anticipated
that discovery on these issues would be taken. (“The fog of
ambiguity surrounding the drafting of the assignment provision
may no doubt clear during further discovery when the parties—and
the Court—have more information available to them.” Id.)
4
Although Liberty vigorously denies defendants’ defense that
the assignment language bars its claim, there is no question
that defendants are entitled to relevant discovery on the issue.
See
Fed.
R.
Civ.
regarding
any
claim
P.
defense).
or
26(b)(1)(parties
non-privileged
The
matter
parties
may
obtain
relevant
recognize
to
discovery
any
this
party’s
fact
since
defendants deposed Robert Philpott (August 15, 2013, October 23,
2013), Martin Premru (October 24, 2013) and Scott Ford (October
24,
2013),
about
the
defendants want more.
obtained
regarding
assignment
language. 4
Nevertheless,
They argue the deposition testimony they
the
assignment
language
is
incomplete,
evasive, “and left unanswered multiple questions concerning the
critical facts surrounding the negotiations and drafting of the
Settlement
provision.”
Agreement,
and
in
particular,
the
assignment
April 9, 2014 Letter Brief (“LB”) at 2.
Defendants
want to see the emails exchanged between and amongst Philpott,
Tractel’s counsel, and Infinity’s counsel, to get a complete
picture of what Liberty knew and did not know, and what Liberty
authorized and did not authorize. Liberty argues the deposition
testimony to date is complete and defendants are not entitled to
additional discovery regarding the execution of the Settlement
Agreement.
Although
the
parties
4
do
not
dispute
that
the
At
the
relevant
time
Philpott
was
plaintiff’s
Assistant
VicePresident/Casualty Claims Officer.
Premru was Trachtel’s Vice-President of
Operations for its Swing Stage Division.
Ford was plaintiff’s Senior VicePresident of Claims.
5
documents
at
issue
are
protected
by
the
attorney-client
privilege and/or the work-product doctrine, defendants contend
the emails are still discoverable. 5
In
connection
with
this
discovery
dispute
the
Court
reviewed in camera the documents Liberty is withholding on the
grounds of privilege and work-product. These documents are the
emails
draft
August
from
and
to
agreements
November
the
2011
interested
regarding
parties
the
exchanged
terms
of
the
Settlement Agreement that was eventually signed on November 22,
2011.
It
is
evident
from
the
documents
that
Robert
Philpott
played the key role for Liberty regarding Liberty’s input into
the Tractel/Borgata settlement terms. During the key time period
Philpott
exchanged
emails
and
draft
agreements
with
various
individuals regarding the settlement terms, including Tractel’s
assigned defense counsel, Infinity’s counsel, and Liberty’s own
counsel.
These are the documents the Court reviewed in camera. 6
Discussion
Even though the parties agree the subject documents are
covered by the attorney-client privilege and/or the work-product
doctrine, that does not end the discussion as to whether the
5
Given the parties’ positions, the Court is not making an independent finding
regarding whether the documents at issue are privileged or work-product.
6
The Court’s review was painstaking. Given the number of involved
individuals, email chains, and draft agreements, it was exceedingly difficult
to make sense of the relevant communications. The Court is confident,
however, that it has a good grasp of the documents it reviewed.
6
documents are discoverable. Exceptions exist that have to be
analyzed in this context.
1.
Attorney-Client Privilege
A court sitting in a diversity action applies state law
with
regard
to
the
attorney-client
privilege.
The
burden
of
establishing that a communication or document is privileged is
on the party asserting the privilege. Torres v. Kuzniasz, 936 F.
Supp. 1201, 1208 (D.N.J. 1996). The attorney-client privilege
protects communications when: (1) the asserted holder of the
privilege is or sought to become a client, (2) the person to
whom the communication was made (a) is a member of the bar of a
court,
or
his
communication
is
subordinate
acting
as
and
a
(b)
in
lawyer,
connection
(3)
the
with
the
communication
relates to a fact of which the attorney was informed (a) by his
client (b) without the presence of strangers (c) for the purpose
of securing primarily either (i) an opinion on law or (ii) legal
services or (iii) assistance in some legal proceeding, and (d)
not for the purpose of committing a crime or tort, and (4) the
privilege has been (a) claimed and (b) not waived by the client.
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862
(3d Cir. 1994). The attorney-client privilege does not apply
merely because a statement was made by or to an attorney. Nor
does the privilege apply simply because a communication conveys
advice that is legal in nature. HPD Laboratories, Inc. v. Clorox
7
Co., 202 F.R.D. 410, 414 (D.N.J. 2001). Instead, the privilege
“protects only those disclosures - necessary to obtain informed
legal
advice
privilege.”
–
which
might
Westinghouse
not
Elec.
have
been
Corp.
v.
made
absent
Republic
of
the
the
Philippines, 951 F.2d 1414, 1423-24 (3d Cir. 1991)(emphasis in
original)(citation omitted).
Importantly, however, under New Jersey law the attorneyclient
privilege
(1979).
It
privilege
is
may
is
qualified.
now
be
well
In
settled
re
that
pierced
societal concerns.”
Kozlov,
where
there
United
Jersey
Bank
the
are
v.
79
N.J.
232
attorney-client
“other
Walosoff,
Super. 553, 563 (App. Div. 1984)(citation omitted).
important
196
N.J.
Pursuant to
Kozlov the attorney-client privilege may be pierced where (1)
there is a legitimate need for the requested information, (2)
the
information
is
relevant
and
material,
and
(3)
the
information could not be obtained from a less intrusive source.
Kozlov, 79 N.J. at 243-44.
With regard to the current discovery dispute, the Court is
tasked
with
deciding
whether
the
attorney-client
privilege
should be pierced. This requires balancing between two of the
bedrock
principles
underpinning
our
system
of
jurisprudence.
Blitz v. 970 Realty Associates, 233 N.J. Super. 29, 38 (App.
Div. Nov. 22, 2011).
On the one hand, a privilege against
compelled disclosure of relevant evidence runs counter to the
8
fundamental notion that the fullest disclosure of fact will lead
to the truth.
Kinsella v. Kinsella, 150 N.J. 276, 294 (1997);
see also Wagi v. Silver Ridge Park West, 243 N.J. Super. 547,
556
(1989)(“To
the
extent
that
[a]
privilege
results
in
the
suppression of evidence, it is at “war with the truth” and must
be
strictly
anchored
quotation
omitted).
privilege
reflects
On
the
to
its
the
essential
other
societal
hand,
judgment
purpose”)(internal
the
that
attorney-client
the
need
for
confidentiality outweighs the need for disclosure. Payton v. New
Jersey Tpk. Auth., 148 N.J. 524, 539 (1997); see also Kozlov, 79
N.J. at 243
(The privilege “has a well-defined relationship,
recognized and defined over the centuries, to the administration
of justice, to the basic needs of the human condition, to the
essential rights of man and thus to the public interest.
such
it
clearly
deserves
the
continued
protection
of
As
the
courts.”).
Given
the
importance
of
the
attorney-client
privilege,
courts recognize that Kozlov did not abolish the privilege or
relegate it to the status of a pedestrian discovery dispute.
Dontzin v. Myer, 301 N.J. Super. 501, 508 (App. Div. 1997).
Clearly,
therefore,
merely
because
privileged
information
relevant does not necessarily require that it be produced.
is
In
Matter of Mackson, 114 N.J. 527, 532 (1989), the court described
the privilege as involving “circumstances so grave … that the
9
privilege
must
yield
justice system.”
to
the
most
fundamental
values
of
our
More recently, the Appellate Division equated
“grave” with “compelling” circumstances. ACBBBits, LLC v. 550
Broad Street, L.P., 2011 WL 5838737, at *8 (N.J. Super. Ct. App.
Div. Nov. 22, 2011).
2.
Work-Product Doctrine
Fed.
R.
Civ.
P.
product from discovery.
26(b)(3)(A)
ordinarily
protects
work-
However, work-product may be discovered
if the requested materials are relevant and the requesting party
shows that is has substantial need for the materials to prepare
its
case
and
substantial
cannot,
without
undue
hardship,
equivalent by other means.
work-product
to
be
produced,
it
obtain
their
Id. If the Court orders
must
protect
against
the
disclosure of the mental impressions, conclusions, opinions, or
legal theories of a party’s attorney or other representative
concerning
not
the
absolutely
circumstances.
litigation.
protected
However,
and
may
“opinion
be
work-product”
produced
in
is
rare
In re Cendant Securities Litigation, 343 F.3d
658, 663-64 (3d Cir. 2003).
3.
Documents to be Produced
Having reviewed in detail the record before the Court, the
Court is left with the firm conviction that fairness dictates
that some of plaintiff’s privileged and work-product documents
be produced, and that defendants have a substantial need for
10
these documents that are not otherwise available in discovery.
The
Court
starts
“standing”
defense
with
as
the
a
notion
key
to
that
defendants
their
case.
view
Although
their
Liberty
dismisses the defense as meritless, the defense is viable at
this stage of the case. Liberty must recognize this fact as
evidenced by its production of Philpott, Premru and Ford for
deposition.
If the deposition testimony of these witnesses gave
defendants a fair and complete picture of Philpott’s knowledge
and
input
regarding
the
negotiation
of
the
Tractel/Borgata
Settlement Agreement, the Court would not direct that additional
documents be produced.
Liberty
testimony
about
the
testimony
produced
wherein
However, this is not the case.
for
the
Court’s
defendants
Tractel/Borgata
review
questioned
assignment.
the
deposition
Liberty’s
Liberty
witnesses
believes
this
“confirms that the defendants had ample opportunity …
to explore the issue of whether ‘Tractel’ had the authority and
permission to include [plaintiff] in the assignment provision
set forth in its settlement with the owners of the Borgata.”
April 3, 2014 Letter Brief at 1.
is
certainly
produced
in
communications
true
The Court disagrees.
that
the
final
discovery,
as
well
regarding
the
Settlement
as
parties’
some
While it
Agreement
was
non-privileged
negotiations,
and
that
defendants questioned Philpott about these documents, the fact
of
the
matter
is
that
defendants
11
will
not
have
a
complete
picture
of
the
parties’
settlement
discussions
without
the
documents the Court is ordering to be produced.
The fact that defendants were hamstrung because they did
not have all relevant documents when they deposed Philpott is
evident
by
Philpott’s
answers
to
important
questions.
The
content and timing of the different drafts of the Settlement
Agreement is undoubtedly important. Nevertheless, Philpott did
not remember what the first draft said, he did not know how many
drafts were exchanged, and he did not know when he saw a draft.
August 15, 2013 Dep. Tr. 204:16 to 205:9.
Philpott
was
insistent
that
he
tried
to
Further, although
remove
the
key
assignment clause from the final agreement, he could not specify
who made this attempt or when. Id. 207:3 to 208:16. When asked
why
the
assignment
clause
stayed
in
the
final
Settlement
Agreement if Liberty wanted it out, Philpott testified, “I don’t
have
an
answer
to
that
question.”
Id.
208:17-20.
The
Court
believes it is likely that the documents to be produced will
refresh Philpott’s recollection.
Other
examples
abound
to
evidence
that
defendants
were
hamstrung because not all relevant documents were produced. For
example: (1) Philpott did not remember if he saw a draft of the
Settlement Agreement with the assignment provision struck (id.
211:20 to 24), (2) he did not remember if he spoke to anyone
about the assignment clause (id. 211:25 to 212:2), and (3) he
12
did not remember if he gave the go ahead to sign the final
Agreement (id. 219:19 to 220:2). Importantly, Philpott testified
that while he approved the settlement and settlement amount, he
did not approve the final Settlement Agreement and is not bound
by
it.
Id.
235:13-16.
He
also
testified
he
did
not
believe
Liberty had the option not to agree to the assignment language
and not to agree to the settlement. Id. 229:20 to 230:6.
In
addition, Philpott testified he did not reach a conclusion as to
whether the assignment provision would bind plaintiff. October
23, 2013 Dep. Tr. 332:19 to 25. Based on the Court’s in camera
review, it believes that additional documents should be produced
in order to give defendants a clearer picture of what went on.
Given the stakes in the case and Philpott’s important role and
self-interest, defendants should not have to accept Philpott’s
testimony
at
“face
value,”
especially
since
he
could
not
remember important details regarding his communications in 2011.
4.
Documents to be Produced
To date defendants have only received the final version of
the
Settlement
should
produce
Agreement.
the
chronological order.
The
different
Court
drafts
concludes
of
the
that
Liberty
Agreement
in
The following documents shall be produced:
1.
CTRL 336-340 (Based on the accompanying emails
that are not being produced, this is the version of
the Agreement Philpott had at least as early as August
30, 2011.)
13
2.
CTRL 229-233 (These are the comments
sent to Withers on September 7, 2011.)
Philpott
3.
CTRL
1755-1760
(The
Court’s
best
judgment,
although it is not certain, is that Withers sent this
version to Philpott, et al. on September 19, 2011
(10:48 a.m.), and that this version includes comments
from the Borgata.)
4.
LIU 4060-4068 (The Court understands that the
October 18, 2011 emails (LIU 4060) were already
produced. These emails add context to the accompanying
draft of the Agreement.)
5.
CTRL 1687-1693 (Per Philpott’s October 20, 2011
email, this was the version “just provided by
Withers”.) Given the importance of this version, the
Court is directing that some associated emails be
produced.
6.
CTRL 1664-1670 (This is the version attached to
David Gabianelli’s October 20, 2011 (12:36 p.m.) email
to Philpott.)
7.
CTRL 1672-1678 (This is the version attached to
Gabianelli’s October 20, 2011 (1:00 p.m.) email to
Philpott.)
8.
CTRL 1583-1589 (This is the version attached to
Gabianelli’s November 2, 2011 (2:32 p.m.) email to
Philpott.) Given the importance of this version, the
Court will order that the two November 2, 2011 emails
on CTRL 1580 be produced.
In
addition
to
the
documents
listed
above,
the
Court
directs that the following emails be produced:
1.
Philpott to Withers, et al. – August 12, 2011
(9:11 a.m.), CTRL 148.
2.
Withers to Philpott
p.m.), CTRL 3508.
–
August
12,
2011
(2:56
3.
Philpott to
p.m.), LIU 3511.
–
August
12,
2011
(3:06
Withers
14
also
4.
Withers to Philpott, et al. – September 19, 2011
(10:48 a.m.), CTRL 1744-45. (Only produce the first
sentence and paragraph 4.)
5.
Bertrand to Philpott
a.m.), CTRL 1655.
–
October
20,
2011
(9:22
6.
Philpott to Bertrand, et al. – October 20, 2011
(10:07 a.m.), CTRL 1682.
7.
Philpott to Goodman, et al. – October 20, 2011
(10:40 a.m.), CTRL 1681.
8.
Philpott to Gabianelli – October 20, 2011 (1:20
p.m.), CTRL 1652.
9.
Philpott to Bertrand
p.m.), CTRL 1655.
–
October
20,
2011
(1:49
10. Withers to Gabianelli, et al. – November 2, 2011
(7:22 a.m.), CTRL 1580.
11. Withers to Gabianelli – November 2, 2011 (10:11
a.m.), CTRL 1561.
12. Gabianelli to Philpott – November 2, 2011 (2:32
p.m.), CTRL 1580.
13. Withers to Gabianelli – November 3, 2011 (10:43
a.m.), CTRL 1552.
14. Withers to Philpott, et al. – November 3, 2011
(10:41 a.m.), CTRL 1550.
15. Philpott to Withers, et al. – November 3, 2011
(4:02 p.m.), CTRL 1550.
16. Withers to Gabianelli – November 17, 2011 (2:39
p.m.), CTRL 1499.
17. Gabianelli to Withers – November 22, 2011 (10:10
a.m.), CTRL 1499.
As to the foregoing documents, the Court finds there is a
legitimate
need
for
them,
the
15
information
is
relevant
and
material, and the information cannot be obtained from a less
intrusive source. In addition, the documents are relevant to one
of defendants’ central defenses.
Also, the discovery conducted
thus far on the negotiations regarding the subject language is
incomplete. Due to the fact that the negotiations occurred in
2011, it is not surprising that Philpott did not have a good
recollection
of
what
occurred.
The
drafts
of
the
Settlement
Agreement and the important emails to be produced tell the true
and complete story. See United Jersey Bank v. Wolosoff, 196 N.J.
Super.
553
rescission
alleged
(App.
of
fraud
communications
Div.
1984)
stipulation
had
a
between
of
(defendants
settlement
legitimate
counsel
for
need
in
and
for
plaintiff
action
damages
seeking
due
disclosure
bank
and
to
of
others
concerning the settlement, the communications were both relevant
and material, and the evidence could not be secured from any
less intrusive source, thus meeting Kozlov requirements); Fahs
Rolston Paving Corp. v. Pennington Properties Dev. Corp., C.A.
No. 03-4593 (MLC), 2006 WL 3827427, at *5 (D.N.J. Dec. 28, 2006)
(ordering
communications
between
counsel
and
client
regarding
specific subjects to be disclosed where all prongs of Kozlov
were met). 7
7
It is clear that the compelled disclosure of privileged documents does not
operate as a waiver of plaintiff’s privilege. United Jersey Bank, 196 N.J.
Super. at 567 n.3.
16
The Court recognizes that the attorney-client privilege and
work-product
doctrine
Nonetheless,
defendants
requested
are
not
have
information.
a
The
to
be
lightly
substantial
information
need
is
regarded.
for
essential
the
to
defendant’s defense and all efforts thus far to get a complete
picture of the genesis and execution of the final assignment
language has been unsuccessful. See In re Neurontin Antitrust
Litig., C.A. No. 02-1390, 2011 WL 2357793, at *8 (D.N.J. June 9,
2011) (affirming magistrate judge’s finding that a substantial
need existed where the only way to reconcile defendant’s denial
of using a product off-label and simultaneous public admission
was to look at work product); Occulto v. Adamar of New Jersey,
Inc., 125 F.R.D. 611, 614 (D.N.J. 1989) (finding a substantial
need
existed
to
obtain
a
draft
expert
report
where
attorney
admitted he drafted the report and had the expert sign it).
The Court is aware of the fact that some of the documents
to be produced may touch on mental impressions, conclusions or
opinions.
However,
as
noted,
opinion
work-product
is
not
afforded absolute protection and may be produced in rare cases.
Cendant,
supra.
Production
is
warranted
here
for
several
reasons. One, Philpott has already testified to his impressions
and
opinions
and
the
documents
to
be
produced
are
directly
related to this testimony. It would be unfair to defendants if
they were not given a complete picture of what happened, instead
17
of just Philpott’s sketchy recollection from the incomplete nonprivileged documents produced to date. Second, only a minimal
amount of opinion information is produced. Third, in the Court’s
view
unless
some
opinion
work–product
is
produced
defendants
will not get a fair and complete picture of what transpired.
Fourth, the Court used its best efforts to minimize the opinion
work-product to be produced.
Frankly, the Court is at a loss to understand why Liberty
would object to the production of the documents listed in this
Order.
the
The Court went to great lengths to review and understand
voluminous
in
camera
documents
it
reviewed,
and
to
only
Order the production of the relatively small number of documents
necessary to give defendants a complete and fair picture of what
happened. Most of the emails to be produced involve Philpott’s
own words. The content of the documents to be produced speak for
themselves and the parties will evaluate for themselves whether
the documents help or hurt them. Nevertheless, based on what the
Court has seen Liberty can certainly make a credible argument
that its documents confirm Philpott’s intent as expressed at his
deposition.
Whether
this
is
enough
to
defeat
defendants’
standing defense is not for this Court to decide. 8
8
To be clear, the Court is not weighing in on whether the produced documents
warrant the dismissal of Liberty’s complaint. That issue is not before the
Court.
18
Conclusion
In conclusion, for the reasons expressed in this Order the
Court finds that some of the documents the parties agree are
privileged and/or work-product should be produced. 9
As to these
documents, the Court finds that the privileged documents should
be produced pursuant to the criteria identified in Kozlov. The
work-product
substantial
shall
need
be
for
produced
the
because
documents
and
defendants
there
is
have
no
a
other
available source from which to obtain the information. It is
clear that Liberty is not voluntarily producing the designated
documents
but
they
are
only
being
produced
because
of
this
Order. The Court has no objection if the parties execute a nonwaiver agreement pursuant to Fed. R. Evid. 502. 10
ORDER
Accordingly, for all the foregoing reasons, it is hereby
ORDERED
this
10th
day
of
December,
2014,
that
defendants’
request for production of plaintiff’s attorney-client privileged
and
work-product
part.
By
documents
December
19,
is
GRANTED
2014,
9
in
plaintiff
part
and
shall
DENIED
produce
in
to
To assist the parties, the Bates numbers of the documents to be produced are
in bold typeface.
10
The Court is not retaining a copy of all the documents it reviewed in
camera. It is only retaining copies of the Bates numbered documents
identified in this Order.
19
defendants
herein.
copies
of
the
Bates-stamped
documents
identified
Defendants’ request for all other documents is denied. 11
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
11
This Order only addresses defendants’ request for documents. The Court is
not presently deciding whether defendants can re-repose any witness.
20
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