Madelaine Chocolate Novelties, Inc. v. Great Northern Insurance Company

Filing 111

ORDER granting in part and denying in part 107 Motion to Compel. Ordered by Magistrate Judge Steven M. Gold on 4/2/2020. (Gold, Steven)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MADELAINE CHOCOLATE NOVELTIES, INC., :
:
Plaintiff,
:
:
-against:
:
GREAT NORTHERN INSURANCE CO.,
:
:
Defendant.
:
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GOLD, STEVEN M., U.S. Magistrate Judge:

MEMORANDUM &
ORDER
15-CV-5830 (RJD) (SMG)

INTRODUCTION
Defendant Great Northern Insurance Company (“Great Northern”) moves to compel the
production of certain documents or, in the alternative, for the Court to review those documents in
camera. Great Northern Mot., Dkt. 107. Plaintiff Madelaine Chocolate Novelties, Inc.
(“Madelaine”) opposes the motion. Madelaine Opp., Dkt. 109. For the reasons stated below, the
motion is granted in part and denied in part.
DISCUSSION
Great Northern brings its motion in the wake of a Memorandum and Order issued by this
Court on February 7, 2020 (“M&O”), Dkt. 105. The M&O directed Madelaine to identify any
documents it had withheld from discovery on the basis of attorney-client privilege solely because
of Scott Wright’s participation in the communications revealed by them (the “Wright
Documents”), and to disclose those documents to Great Northern no later than February 21,
2020. M&O at 4–5. Great Northern contends in its motion that Madelaine has failed to comply
with the Court’s Order. For the reasons set forth below, I find Great Northern’s arguments
largely unpersuasive.
Great Northern first contends that Madelaine now seeks to withhold several Wright
Documents as work product, but previously asserted that these same documents should not be

produced only because they revealed privileged attorney-client communications. Madelaine
states that, in response to the M&O, it has carefully reviewed each of the Wright documents,
produced those that had been withheld solely on the basis of Scott Wright’s status as an attorney,
and is not now invoking the work product protection for the first time.
To the extent Great Northern contends that newly invoked claims of work product
protection are inherently dubious, I reject that contention. Particularly under the circumstances
presented here, there is no reason to doubt the good faith of Madelaine’s work product claims
even if they are first being invoked now. As explained in the M&O, Madelaine’s principals
apparently believed that Wright was an attorney. Even if Madelaine has failed to demonstrate
that its belief was reasonably held, it is undisputed that Wright was once an attorney and that he
was considered to be Madelaine’s general counsel for a period of time. M&O at 1, 3. It is
reasonable to infer, then, that Wright would have been the person at Madelaine interacting most
frequently and directly with its outside counsel. Thus, it is neither surprising nor cause for
skepticism that documents Wright authored or received were treated by Madelaine as attorneyclient communications before the M&O, and are now being withheld by Madelaine, after the
M&O, as work product.
Great Northern argues as well that Madelaine has improperly invoked work product with
respect to documents created even before there was any indication that Great Northern would
deny coverage for the losses at issue in this action. Madelaine has essentially mooted that
argument, though, by agreeing to produce the two documents in dispute that were created before
Great Northern’s representative indicated that at least some aspects of Madelaine’s claim for
coverage would be denied. 1
Great Northern argues that, because Madelaine’s Vice President did not recall the relevant conversation with Great
Northern’s representative at his deposition, Madelaine could not reasonably have anticipated litigation as a result of
that conversation. The fact that the witness could not recall the conversation at his deposition, of course, is

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Great Northern also contends it has a compelling need for the documents withheld by
Madelaine as work product because Norman Gold, Madelaine’s Vice President, invoked the
attorney-client privilege at his deposition and declined to answer questions about conversations
he had with Wright. A party may discover work product upon a showing that “it has substantial
need for the materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.” Fed. R. Civ. P. 26 (b)(3)(A)(ii). When Great Northern
moved to compel based on Scott Wright’s failure to remain a member of a bar, however, it did
not seek to reopen Gold’s deposition or otherwise obtain answers to the questions Gold declined
to answer at his deposition. See Great Northern Mot. for Hr’g, Dkt. 95. Nor does Great
Northern explain why it follows that the documents withheld by Madelaine as work product
would, if disclosed, reveal the substance of the communications Gold did not disclose at his
deposition. Great Northern further argues—albeit in an exhibit rather than in the text of its letter
motion—that it has a compelling need for the documents withheld as work product because
“they show Madelaine’s understanding or expectation of its coverage.” Great Northern Mot. Ex.
C at 1, Dkt. 107-3. Great Northern has not demonstrated, however, that Madelaine’s witnesses,
document production, and interrogatory responses fail to provide information about Madelaine’s
understanding of its coverage.
Finally, Great Northern questions the validity of several of Madelaine’s specific
assertions of work product protection and attorney-client privilege. See Great Northern Mot. Ex.
C; Great Northern Mot. Ex. D, Dkt. 107-4. Some of Madelaine’s assertions of attorney-client
privilege and work product protection are in fact difficult to understand. For example, Great

irrelevant to whether Madelaine understood that Great Northern would be denying coverage at the time the
conversation took place. In any event, there can be no genuine question about when Madelaine anticipated
litigation, because Madelaine has submitted a document authored by Great Northern’s adjuster confirming that he
advised Madelaine’s representative in November of 2012 that flood damage would not be covered by Great
Northern’s policy. Madelaine Opp. Ex. B, Dkt. 109-2.

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Northern points to redactions on a letter from Travelers dated March 20, 2013 that Madelaine
describes as work product. Great Northern Mot. at 3–5. Great Northern also questions the claim
that communications between Wright and the CEO of a firm that provided public relations
services to Madelaine are “communication[s] with legal counsel reflecting legal advice.” Great
Northern Mot. at 4; Great Northern Mot. Ex. E at 43, Privilege Log entries 225 & 226, Dkt. 1075. The Court agrees that these particular assertions of privilege and work product protection
warrant further scrutiny. Accordingly, within one week of the date of this Memorandum and
Order, Madelaine shall either produce these documents to Great Northern or submit them to the
Court, ex parte, for in camera review, together with an ex parte letter explaining the basis for its
assertions of privilege and work product with respect to them.
CONCLUSION
For the reasons stated above, Great Northern’s motion is granted in part and denied in
part.
SO ORDERED.

Brooklyn, New York
April 2, 2020

Steven M. Gold
United States Magistrate Judge

U:\Madelaine Chocolate Novelties Inc. v. Great Northern Ins. Co. 15-CV-5830 final 040220.docm

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