Hargrove et al v. Scigliano et al

Filing 8

MEMORANDUM AND ORDER - Montfort Healy's Objections (Docket No. 93) are OVERRULED, and Judge Tomlinson's Order (Docket No. 91) is AFFIRMED. Ordered by Judge Joanna Seybert on 12/15/10. (Coleman, Laurie)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X TOKYO MARINE AND NICHIDO FIRE INSURANCE CO., LTD., as subrogee for Mitsubishi Motors Credit of America, Inc., Plaintiff, -againstROSALIE CALABRESE and LOUIS FACCIPONTI, Defendants. ----------------------------------------X ROSALIE CALABRESE and LOUIS FACCIPONTI, Third-Party Plaintiffs, -againstRUSSO & APOZNANSKI, and MONTFORT, HEALY, MCGUIRE & SALLEY, LLP, Third-Party Defendants. ----------------------------------------X RUSSO & APOZNANSKI, Cross-Claimant, -againstMONTFORT, HEALY, MCGUIRE & SALLEY, LLP Cross-Claim Defendant, ----------------------------------------X

MEMORANDUM AND ORDER 07-CV-2514 (JS) (AKT)

----------------------------------------X MONTFORT, HEALY, MCGUIRE & SALLEY, LLP, Cross-Claimant, -againstRUSSO & APOZNANSKI Cross-Claim Defendant, ----------------------------------------X APPEARANCES: For Plaintiffs: Hae Jin Shim, Esq. London Fischer LLP 59 Maiden Lane New York, NY 10038 For Rosalie Calabrese and Louis Facciponti: Carl S. Sandel, Esq. Morris Duffy Alonso & Faley Two Rector Street New York, NY 10006 Diane K. Kanca, Esq. Mark J. Sarro, Esq. Edward Griffin Warren, Esq. The McDonough Law Firm, L.L.P. 145 Huguenot Street, 3rd Floor New Rochelle, NY 10801 Frank T. Cara, Esq. The Judlau Companies 26-15 Ulmer Street College Point,, NY 11354 For Montfort Healy: Argyrios Petropoulos, Esq. Jared Andrew Kasschau, Esq. Rebecca Jeanne Waldren, Esq. Catalano Gallardo & Petropoulos LLP 100 Jericho Quadrangle, Suite 214 Jericho, NY 11753 Ralph A. Catalano, Esq. Catalano, Gallardo & Petropoulos, LLP 1565 Franklin Avenue Mineola, NY 11501

For Russo & Apoznanski:

2

Candice Brook Ratner, Esq. L'Abbate, Balkan, Colavita & Contini LLP 1001 Franklin Avenue, 3rd Fl. Garden City,, NY 11530 Christopher B. Weldon, Esq. Lustig & Brown, LLP 190 Old Ridgefield Rd Wilton, CT 06897 Stephen Carson Cunningham, Esq. William C. Kelly, Esq. Lustig & Brown LLP 28 West 44th Street, 20th Floor New York, NY 10036 SEYBERT, District Judge: Pending Montfort, Healy, before McGuire the & Court Salley, is Third Party Defendant Healy")

LLP's

("Montfort

Objections to Magistrate Judge Tomlinson's March 14, 2010 Order denying a motion to compel production of a "Serious Loss Report" from Plaintiff Tokio Marine and Nichido Fire Insurance Co., Ltd. ("Tokio Marine"). See Docket Nos. 91, 93. For the following

reasons, those Objections are OVERRULED, and Judge Tomlinson's Order is AFFIRMED.1 DISCUSSION In non-dispositive matters, including discovery

disputes, the Court shall reverse a Magistrate Judge's order only where it has been shown that the order is "clearly Here,

erroneous or contrary to law."
1

28 U.S.C. § 636(b)(1)(A).

On August 16, 2010, Magistrate Judge Tomlinson denied a motion for reconsideration of the same Order. See Docket No. 100. 3

Montfort Healy contends that Magistrate Judge Tomlinson clearly erred because, it argues: (1) the Serious Loss Report is neither privileged nor work product; and (2) even if privileged or work product, Tokio Marine waived its right to assert these

protections. Court is

After reviewing Montfort Healy's Objections, the that Magistrate Judge Tomlinson made no

confident

error, much less a clear one. To begin with, Montfort Healy's argument that the

Serious Loss Report is neither privileged nor work product is simply absurd. As Montfort Healy itself sets forth, the Serious

Loss Report was an internal report generated by a Tokio Marine non-attorney litigation specialist that analyzed a pending

litigation and recommended settlement. 2-4.) Loss

(Montfort Healy Br. at

At a minimum, that series of facts defines the Serious Report as core opinion work product, entitled to the

strongest protection available under the work product doctrine. See In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (opinion work product reflects the "mental impressions, conclusions, opinions, or legal theories of an

attorney or other representative," and must show "a real, rather than speculative, concern" that the work product will reveal counsel's anticipated omitted). thought processes "in relation citations is to and pending or

litigation") In this

(internal it 4

quotations that a

regard,

inconsequential

litigation

specialist

wrote

the

Serious

Loss

Report,

not

a

licensed attorney.

See United States v. Adlman, 134 F.3d 1194,

1195 (2d Cir. 1998) ("a document created because of anticipated litigation, conclusions, which opinions tends or to reveal mental the impressions, litigation"

theories

concerning

qualifies under the work product doctrine, even if created by a non-attorney); see generally United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). nothing to justify And Montfort Healy has put forth the work product doctrine's

overcoming

protections. Montfort Healy's argument that Tokio Marine waived

privilege/work product deserves somewhat more consideration, but still fails. Montfort Healy contends that Tokio Marine waived

privilege because: (1) in bringing this indemnification action, Tokio settle Marine at placed the "reasonableness" Tokio Marine, of its decision to

issue;

and

(2)

without

objection,

permitted its witness to testify about the Serious Loss Report's contents at a deposition. With Marine has respect the to (1), the Court of agrees its that Tokio in

placed

"reasonableness"

settlement

dispute.

But, this does not, ipso facto, mean that Tokio Marine

has waived privilege with respect to its opinion work product. See Deutsche Bank Trust Co. of Americas v. Tri-Links Inv.

Trust, 3 A.D.3d 56, 837 N.Y.S.2d 15, 18 (1st Dep't 2007) ("A 5

party suing to enforce an alleged right to indemnification for the costs of defending and settling a prior lawsuit does not thereby, without more, place at issue the party's privileged communications settlement."). with counsel concerning the prior lawsuit and

Rather, such an "at issue" waiver occurs only

"when the party has asserted a claim or defense that he intends to prove by use of the privileged materials." at 23. Id., 837 N.Y.S.2d

And here, Tokio Marine has not sought to introduce or work product documents to prove its

privileged

"reasonableness" claims.

Instead, as far as the Court can tell,

Tokio Marine has endeavored to establish reasonableness in other ways, such as by identifying unfavorable facts in the underlying lawsuit. Consequently, Tokio Marine has not engaged in an "at

issue" waiver. Tokio Marine also did not waive privilege by (2)

failing to object when its witness testified about the Serious Loss Report at a deposition. As Magistrate Judge Tomlinson

correctly found, this testimony did not "disclose the substance of any of the legal advice the Plaintiff received." 100 at 9. Docket No.

Instead, it did little more than provide the kind of

basic information that might be contained on a privilege log, such as setting forth the document's existence and its author.

6

CONCLUSION Montfort OVERRULED, AFFIRMED. SO ORDERED /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York December 15, 2010 and Healy's Objections Order (Docket (Docket No. No. 93) 91) are is

Judge

Tomlinson's

7