Edebali v. Bankers Standard Insurance Company
ORDER denying 50 Motion to Quash. SEE ATTACHED ORDER for details. Plaintiff's Counsel is directed to serve a copy of the attached Memorandum and Order on Attorney Gibbons forthwith and to file proof of such service on ECF promptly. Ordered by Magistrate Judge A. Kathleen Tomlinson on 7/17/2017. (Roman, Joshua)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CV 14-7095 (JS) (AKT)
BANKERS STANDARD INSURANCE
A. KATHLEEN TOMLINSON, Magistrate Judge:
Plaintiff Yucel Edebali (“Plaintiff” or “Edebali”) brings the instant action against
Defendant Bankers Standard Insurance Company (“Defendant” or “Bankers Standard”) seeking
damages in conjunction with an insurance claim filed in the aftermath of “Superstorm Sandy.”
See generally Complaint (“Compl.”) [DE 1-2]. Specifically, Plaintiff asserts claims for breach of
contract and violations of New York General Business Law (“GBL”) Section 349.1 Id.
Presently before the Court is Defendant’s motion to quash two subpoenas (the “Subpoenas”)
served on non-party Brian Gibbons, Esq., Bankers Standard’s outside counsel. See DE 50. For
the reasons that follow, Defendant’s motion is DENIED, without prejudice.
On January 14, 2016, Judge Seybert granted Defendant’s motion to dismiss Plaintiff’s
claim arising under GBL § 349. See DE 36. As such, Plaintiff’s only surviving cause of action
is his breach of contract claim.
RELEVANT FACTUAL BACKGROUND
The relevant facts are taken from the Complaint, the January 25, 2017 Affirmation of
Scott E. Agulnick as well as the Affidavits of Jeffrey Maffucci and Cara DiGiovanna, attached as
exhibits to the December 21, 2016 Affirmation of Paul C. Ferland, counsel for Bankers Standard
in this action. All facts are assumed to be true for the purposes of the instant motion.
Plaintiff is the owner of a residential dwelling located at 546 Long Beach Road,
Nissequogue, New York 11780 (the “Property”). Compl. ¶ 5. Plaintiff contracted with
Defendant for a homeowner’s insurance policy in order to protect the Property against risk of
loss, including “physical loss from wind, power surge, vandalism, theft, as well as for lost rents.”
Id. ¶ 6. In consideration of the premium paid by Plaintiff, Defendant issued Plaintiff a policy
“bearing policy number 268-02-80-38” (the “Policy”). Id.
On October 29, 2012, Superstorm Sandy ravaged much of the east coast of the United
States. The Property, which was located in the direct path of the storm, sustained significant
damage due to wind and power surges. Id. ¶¶ 8-9. Specifically, as a result of the storm, the
Property suffered damages to the following areas: structure, electronics and home automation
systems, HVAC systems, irrigation controls, sprinkler system, exterior lighting and electrical,
landscaping, outdoor and indoor swimming pools, bluff stairs and live coral reef. Id. ¶ 10.
Based upon the aggregate scope of the damages, the Property was “rendered uninhabitable and
unusable.” Id. ¶ 11.
After being apprised of the loss (the “Sandy Claim”), Defendant assigned Jeffrey
Maffucci (“Maffucci”) as “the in-house adjuster, to investigate the Sandy Claim.” December 20,
2016 Affidavit of Jeffrey Maffucci (“Maffucci Aff.”), attached as Exhibit (“Ex.”) C to the
December 21, 2016 Affirmation of Paul C. Ferland (“Ferland Aff.”) [DE 50-2], ¶ 4. In his role
as Defendant’s in-house claims adjuster, Maffucci was responsible for “gathering information
and advising [Defendant] concerning the scope of the loss and facts that might affect its coverage
determination” concerning the Sandy Claim. Id. ¶ 5. As part of this information gathering role,
Maffucci “requested invoices, estimates, and other documentation from Plaintiff that would
support his Sandy Claim.” Id. ¶ 10. Notwithstanding these requests, Maffucci states that
“Plaintiff failed to provide all necessary documentation, and any information he did provide was
submitted in piecemeal fashion.” Id. ¶ 11. In light of the difficulties in collecting complete
records from Plaintiff, Defendant “ultimately decided to conduct Plaintiff’s examination under
oath (“EUO”) to clarify the facts of the Sandy loss and establish the components of the Sandy
Claim.” Id. ¶ 11. In order to provide legal advice in conjunction with the pending Sandy Claim
(including representing Defendant at Plaintiff’s EUO), Defendant retained the law firm of Wade
Clark Mulcahy (“WCM”). Id. ¶ 12. Despite retaining WCM, Maffucci states that the firm
“played no role in the Adjustment of the Sandy Claim during [his] time as the adjuster of the
Sandy Claim.” Id. ¶ 9; see, e.g., December 20, 2016 Affidavit of Brian Gibbons (“Gibbons
Aff.”), attached as Ex. C to the Ferland Aff. (stating, in part, that Brian Gibbons, Esq., a partner
with WCM, was retained in July 2013 as “coverage counsel” and was charged with providing
Defendant “legal advice regarding the Sandy Claim” and representing Defendant at Plaintiff’s
EUO); but see January 25, 2017 Affirmation of Scott E. Agulnick (“Agulnick Aff.”) [DE 51-1],
¶¶ 7-8 (characterizing Attorney Gibbons’ role as a “claims handler” and “point person in the
claims process” in light of the “countless communications between Mr. Gibbons and Your
During the pendency of the adjustment period for the Sandy Claim, the Property
sustained additional damages on two separate occasions — September 28, 2013 and October 5,
2013 — due to vandalism and theft (the “Vandalism Claim”). Compl. ¶¶ 41-42. These damages
consisted of “a direct physical loss to the radiant heating system, HVAC systems, electronics
damage and theft, theft of art, small appliances, televisions, damage to furniture [and] copper
piping. . . .” Agulnick Aff. ¶ 6. Upon receiving notice of this additional claim, Defendant
assigned Cara DiGiovanna (“DiGiovanna”) “as the in-house adjuster, to investigate the
Vandalism Claim.” December 20, 2016 Affidavit of Cara DiGiovanna (“DiGiovanna Aff.”),
attached as Ex. C to the Ferland Aff., ¶ 5. Similar to the responsibilities of Maffucci — the inhouse adjuster assigned to the Sandy Claim — DiGiovanna “was tasked with gathering
information and advising [Defendant] concerning the scope of the vandalism loss and facts that
might affect [Defendant’s] coverage determination.” Id. ¶ 7. Significantly, DiGiovanna stated
that she “supervised, coordinated, and directed the investigation of the vandalism incidents” and
that “Mr. Gibbons played no role” in any of these activities. Id. ¶ 11. Rather, according to
DiGiovanna, Attorney Gibbons’ “only role . . . was to provide legal advice . . . [and, as such]
[h]e never adjusted, investigated, or handled the Vandalism Claim in any way.” Id. ¶ 12.
Similar to the characterizations of his involvement as set forth in the Maffucci and
DiGiovanna Affidavits, Gibbons himself characterizes his role with respect to the claims process
as one limited to “providing legal advice” concerning Defendant’s “duties and obligations.”
Gibbons Aff. ¶¶ 5-10. As such, according to Attorney Gibbons, he “never acted as a claims
adjuster, but rather, provided legal advice to the claims adjuster assigned by [Defendant] to each
claim.” Id. ¶ 10; but see Agulnick Aff. ¶ 11, Exs. A-C (coverage determination and adjustment
letters from Attorney Gibbons to Attorney Agulnick which Plaintiff asserts illustrate that
Attorney Gibbons was integral to the “handling of the claims in the ordinary course of
APPLICABLE LEGAL STANDARDS
A. Federal Rule of Civil Procedure 26
Rule 26(b)(1), as amended on December 1, 2015, recognizes that “[i]nformation is
discoverable . . . if it is relevant to any party’s claim or defense and is proportional to the needs
of the case.” Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley v. Choice
Hotels Int’l, No. CV 14-634, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) (recognizing
that “the current version of Rule 26 defines permissible discovery to consist of information that
is, in addition to being relevant ‘to any party’s claim or defense,’ also ‘proportional to the needs
of the case.’”) (internal citation omitted); Denim Habit, LLC v. NJC Boston, LLC, No. 13 CV
6084, 2016 WL 2992124, at *3 (E.D.N.Y. May 23, 2016). Notably, although Rule 26 still
permits a wide range of discovery based upon relevance and proportionality, the “provision
authorizing the court . . . to order discovery of any matter relevant to the subject matter involved
in the action” has been eliminated. Rule 26 Advisory Committee Notes to 2015 Amendments;
see Sibley, 2015 WL 9413101, at *2 (internal citation omitted). The rationale behind the
elimination of this phrase is the finding that it “has been used by some, incorrectly, to define the
scope of discovery.” Rule 26 Advisory Committee Notes to 2015 Amendments. Thus, Rule
26(b)(1), as amended, although not fundamentally different in scope from the previous version
“constitute[s] a reemphasis on the importance of proportionality in discovery but not a
substantive change in the law.” Vaigasi v. Solow Mgmt. Corp., No. 11 CIV 5088, 2016 WL
616386, at *13 (S.D.N.Y. Feb. 16, 2016); see Robertson v. People Magazine, No. 14 Civ. 6759,
2015 WL 9077111 at *2 (S.D.N.Y. Dec. 16, 2015) (“[T]he 2015 amendment [to Rule 26] does
not create a new standard; rather it serves to exhort judges to exercise their preexisting control
over discovery more exact-ingly.”).
Notwithstanding the foregoing principles, however, “[t]he party seeking discovery must
make a prima facie showing that the discovery sought is more than merely a fishing expedition.”
Barbara v. MarineMax, Inc., No. 12 Civ. 368, 2013 WL 1952308, at *2 (E.D.N.Y. May 10,
2013) (citing Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 2009 WL 585430, at *5
(D. Conn. Mar. 4, 2009)); Evans v. Calise, No. 92 Civ. 8430, 1994 WL 185696, at *1 (S.D.N.Y.
May 12, 1994)); Denim Habit, LLC, 2016 WL 2992124, at *3. In general, “[a] district court has
broad latitude to determine the scope of discovery and to manage the discovery process.” EM
Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (citing In re Agent Orange Prod.
Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)); Barbara, 2013 WL 1952308, at *3 (“Courts afford
broad discretion in magistrates’ resolution of discovery disputes.”); Coggins v. Cnty. of Nassau,
No. 07 Civ. 3624, 2014 WL 495646, at *2 (E.D.N.Y. Feb. 6, 2014) (A district court has “broad
discretion to determine whether an order should be entered protecting a party from disclosure of
information claimed to be privileged or confidential.”) (internal quotation omitted); see also
Mirra v. Jordan, No. 13-CV-5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016)
(“[m]otions to compel are left to the court’s sound discretion.”); Liberty Mut. Ins. Co. v. Kohler
Co., No. 08-CV-867, 2010 WL 1930270, at *2 (E.D.N.Y. May 11, 2010) (“[A] motion to compel
is entrusted to the sound discretion of the district court.”).
B. Federal Rule of Civil Procedure 45
Rule 45 of the Federal Rules of Civil Procedure governs the procedure when an
individual or entity seeks to quash or modify a subpoena. Specifically, Rule 45(d) provides, in
pertinent part, that
(A) When Required. On timely motion, the court for the district
where compliance is required must quash or modify a subpoena
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the court for the district where compliance is
required may, on motion, quash or modify the subpoena if it
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or
(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from
the expert's study that was not requested by a party.
Fed. R. Civ. P. 45(d)(3)(A), (B).
“A determination to grant or deny . . . a motion to quash a subpoena is discretionary.”
John Wiley & Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185, 189 (S.D.N.Y. 2012); see In re
Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68 (2d Cir. 2003); Solomon v. Nassau Cnty.,
274 F.R.D. 455, 460 (E.D.N.Y. 2011) (“Motions to quash subpoenas under the Rules are
‘entrusted to the sound discretion of the district court.’”) (quoting In re Fitch, Inc., 330 F.3d 104,
108 (2d Cir. 2003)); Libaire v. Kaplan, 760 F. Supp. 2d 288, 291 (E.D.N.Y. 2011) (“The
decision whether to quash or modify a subpoena is committed to the sound direction of the trial
court.”) (citations omitted).
“The party issuing the subpoena must demonstrate that the information sought is relevant
and material to the allegations and claims at issue in the proceedings.” Night Hawk Ltd. v.
Briarpatch Ltd., 03 Civ. 1382, 2003 WL 23018833, at *8 (S.D.N.Y. Dec. 23, 2003); see also
Salvatorie Studios, Int’l v. Mako’s Inc., 01 Civ. 4430, 2001 WL 913945, at *1 (S.D.N.Y. Aug.
14, 2001). Relevance in this context is subject to the over-arching relevance requirement
outlined in Rule 26(b)(1). See In re Refco Sec. Litig., 759 F. Supp. 2d 342, 345 (S.D.N.Y. 2011)
(“Subpoenas issued under Rule 45 are subject to the relevance requirement of Rule 26(b)(1)”);
see Ford Motor Credit Co. v. Meehan, No. CV 05-4807, 2008 WL 2746373, at *4
(E.D.N.Y. July 11, 2008); During v. City Univ. of New York, No. 05 Civ. 6992, 2006 WL
2192843, at *82 (S.D.N.Y. Aug. 1, 2006).
C. The Attorney-Client Privilege
The attorney-client privilege safeguards confidentiality and transparent communications
between client and counsel. See, e.g., United States v. Sabbeth, 34 F. Supp. 2d 144, 152
(E.D.N.Y. 1999) (noting “the overriding importance of the attorney-client privilege”); see also
In re Grand Jury Investigation, 399 F.3d 527, 531 (2d Cir. 2005) (“[t]he purpose of the attorneyclient privilege is to promote open communication between attorneys and their clients so that
fully informed legal advice may be given”) (internal quotation omitted); Restatement (Third) of
the Law Governing Lawyers § 68 cmt. c (2000) (“The rationale for the [attorney-client] privilege
is that confidentiality enhances the value of client-lawyer communications and hence the efficacy
of legal services.”).
The privilege applies to “communications (1) between a client and his or her attorney (2)
that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or
providing legal advice.” United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011) (citing In re
Cnty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007)); McNamee v. Clemens, No. 09 Civ. 1647, 2014
WL 6606661, at *2 (E.D.N.Y. Nov. 19, 2014).2 “The burden of establishing the existence of an
In light of the fact that the Court’s subject matter jurisdiction is predicated on diversity
grounds (as opposed to federal question), the elements and scope of the attorney-client privilege
are governed by New York law. See AP Links, LLC v. Russ, No. CV 09-5437, 2012 WL
3096024, at *2 (E.D.N.Y. July 30, 2012) (“Since the basis for subject matter jurisdiction in this
action is diversity of parties, the attorney-client privilege is governed by New York State law.”)
(citing Aiossa v. Bank of America, No. CV 10–1275, 2011 WL 4026902, at *3 (E.D.N.Y. Sept.
12, 2011)); 105 St. Assocs., LLC v. Greenwich Ins. Co., No. 05 CIV. 9938, 2006 WL 3230292, at
*3 (S.D.N.Y. Nov. 7, 2006) (“As jurisdiction in this case is based on diversity, the New York
attorney-client privilege, in all of its elements, rests with the party asserting it.” United States v.
Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL–CIO, 119 F.3d 210,
214 (2d Cir. 1997); see Mejia, 655 F.3d at 132; Abu Dhabi Commercial Bank, 2011 WL
4716334, at *1 (“Under New York Law, the party asserting either the attorney-client privilege or
attorney work product protection has the ‘heavy burden’ of proving that privilege or protection
applies to the documents or communications at issue.”). Significantly, the privilege “only
protects disclosure of communications; it does not protect disclosure of the underlying facts.”
Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)
(citations omitted); Franzone v. Lask, No. 14 Civ. 3043, 2015 WL 1379066, at *6 (S.D.N.Y.
Mar. 26, 2015) (citing Upjohn 449 U.S. at 395-96); Wultz v. Bank of China Ltd., 304 F.R.D. 384,
391 (S.D.N.Y. Jan. 21, 2015) (“However, we are unaware of any case law suggesting that a
person’s collection of information is protected merely because the person harbors a plan to
provide the information later to an attorney—particularly where there is no proof that the
attorney sought to have the individual collect the information at issue. Indeed, case law holds
just the opposite.”) (collecting cases).
law of privilege applies.”); Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., No. 08
CIV. 7508, 2011 WL 4716334, at *3 (S.D.N.Y. Oct. 3, 2011), report and recommendation
adopted, 2011 WL 4716335 (S.D.N.Y. Oct. 7, 2011) (“state law governs the question of
attorney-client privilege in a diversity action”); see also N.Y. C.P.L.R. § 4503(a)(1) (codifying
doctrine of attorney-client privilege). “Nevertheless, the distinction between New York and
federal law on attorney-client privilege is quite indistinguishable, as the law intersects in all of its
facets, and are viewed interchangeably.” NXIVM Corp. v. O’Hara, 241 F.R.D. 109, 124
(N.D.N.Y. 2007); see Bank of Am., N.A. v. Terra Nova Ins. Co. Ltd., 211 F. Supp. 2d 493
(S.D.N.Y. 2002) (“New York law governing attorney-client privilege is generally similar to
accepted federal doctrine.”) (citations omitted).
In the insurance context, “‘documents prepared in the ordinary course of an insurer’s
business (which by its nature, involves claim investigation and analysis) are not protected from
discovery,’ even when they are provided to or prepared by counsel.” 866 E. 164th St., LLC v.
Union Mut. Fire Ins. Co., No. 16-CV-03678, 2016 WL 6901321, at *1 (S.D.N.Y. Nov. 23, 2016)
(internal alteration omitted) (quoting OneBeacon Ins. Co. v. Forman Int’l, Ltd., No. 04 Civ.
2271, 2006 WL 3771010, at *5 (S.D.N.Y. Dec. 15, 2006) (internal quotation marks and brackets
omitted) (citing cases)); see Melworm v. Encompass Indem. Co., 37 Misc. 3d 389, 391, 951
N.Y.S.2d 829, 831–32 (Sup. Ct. 2012), aff’d, 112 A.D.3d 794, 977 N.Y.S.2d 321 (2013) (“[T]he
payment or rejection of claims is a part of the regular business of an insurance company.
Consequently, reports which aid it in the process of deciding which of the two indicated actions
to pursue are made in the regular course of its business. Reports prepared by insurance
investigators, adjusters, or attorneys [emphasis added] before the decision is made to pay or
reject a claim are thus not privileged and are discoverable. . . .”) (internal citation omitted)
(alteration in original).
However, the corollary to this proposition is that “[j]ust because counsel is engaged as
coverage counsel, it does not mean that counsel may not provide legal advice to his or her client,
which would be subject to attorney-client privilege.” Fox Paine & Co., LLC v. Houston Cas.
Co., 51 Misc. 3d 1212(A), 37 N.Y.S.3d 207 (N.Y. Sup. 2016) (citing Reliance Ins. Co. v. Am.
Lintex Corp., No. 00 CIV 5568, 2001 WL 604080 (S.D.N.Y. June 1, 2001)); see 105 St. Assocs.,
LLC, 2006 WL 3230292, at *3 (“Although [i]n the context of insurance litigation, attorney-client
communications have been denied protection when it appears the attorney is merely investigating
a claim on a policy, when such communications relate to legal advice, they do not lose the
protection of the attorney-client privilege simply because they involve an insurance claim.”)
(internal citation omitted) (emphasis in original); Tudor Ins. Co. v. McKenna Assocs., No. 01
CIV. 0115, 2003 WL 21488058, at *3 (S.D.N.Y. June 25, 2003) (recognizing that
“communications between Tudor [the insurance carrier] and Thurm & Heller [its coverage
counsel] that relate to the provision of legal advice are privileged and need not be disclosed.”);
All Waste Sys., Inc. v. Gulf Ins. Co., 295 A.D.2d 379, 380, 743 N.Y.S.2d 535, 536 (2002)
(finding attorney-client privilege applied to coverage opinion reports and draft disclaimer letters
prepared for insurer by outside counsel); 570 Smith St. Corp. v. Seneca Ins. Co., 148 A.D.3d 561,
50 N.Y.S.3d 57, 57 (App. Div. 2017) (following inspection of documents in camera in an action
involving insurer’s failure to pay benefits due under an insurance policy, the court determined
that attorney-client privilege applied to certain documents prepared by counsel since “the
correspondence between defendant and its counsel . . . [was] predominantly of a legal
Thus, much like any other context in which a party asserts the attorney-client privilege,
the Court must engage in a “fact-specific determination, most often requiring in camera review.”
Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C., 191 Misc. 2d 154, 157, 738 N.Y.S.2d
179, 184 (Sup. Ct. 2002) (quoting Spectrum Sys. Int’l Corp. v. Chemical Bank, 78 N.Y.2d 371,
378, 575 N.Y.S.2d 809, 581 N.E.2d 1055 (1991)); Roswell Park Cancer Inst. Corp. v. Sodexo
Am., LLC, 68 A.D.3d 1720, 1721, 891 N.Y.S.2d 827, 829 (2009) (same).
Defendant’s motion seeks to quash two subpoenas served upon non-party Brian Gibbons,
Esq. of the law firm of Wade Clark Mulcahy. See generally Def.’s Motion. The Subpoena
duces tecum seeks the production of seven broad categories of documents relating to the
investigation of Plaintiff’s insurance claims while the Subpoena ad testificandum requests that
Attorney Gibbons testify regarding “[t]he factual background and circumstances related to all
aspects of the investigation undertaken by [WCM], with regard to Plaintiff’s insurance claims for
all dates prior to the time which Defendant had reasonable grounds to reject the insurance
claim(s). . . .” See Agulnick Affm., Ex. E (Subpoena duces tecum, Attachment A), (Subpoena ad
testificandum, Attachment B).
The gravamen of Defendant’s argument as to why the Subpoenas served upon non-party
Brian Gibbons., Esq. should be quashed is that they would require the disclosure of documents
and/or communications which are subject to the attorney-client privilege. See Memorandum of
Law in Support of Bankers Standard’s Motion to Quash Subpoenas of Brian Gibbons and for a
Protective Order (“Def.’s Mem.”) at 5 (“the Gibbons Subpoenas improperly seek material that is
protected by the attorney-client privilege”).3 Plaintiff disputes this assertion and instead avers
that Defendant “is unable to establish the applicability of the narrowly construed [attorney-client]
privilege doctrine, as the payment or rejection of claims is a part of the regular business of an
insurance company. . . .”). Plaintiff’s Memorandum of Law in Opposition (“Pl.’s Opp’n”) at 10.
The Court has undertaken a thorough review of the parties’ papers submitted in support
of and in opposition to the motion and, having done so, is constrained to find that the parties
have put the proverbial cart before the horse. Indeed, at this juncture, the Court is hampered by
the fact that neither party has supplied it with sufficient factual information concerning the
particular documents at issue in order to assist the Court in rendering a determination whether
the attorney-client privilege applies here. To date, Defendant has not produced the required
Although Defendant initially interposed an argument based upon improper notice,
see Def.’s Mem. at 9-10, it appears that this issue is moot. See Pl.’s Opp’n at 16 (indicating that
the Subpoenas were re-served upon Defendant’s counsel in accordance with Fed. R. Civ. P.
45(a)(4) after both counsel conferred and Defendant’s counsel indicated he was authorized to
accept service on behalf of Brian Gibbons.
privilege log in this case particularizing the documents it seeks to withhold based on privilege.
Nor has either party requested an in camera review of the documents to enable the Court to
engage in a proper case-specific assessment whether the attorney-client privilege applies here in
the first instance.
As stated above, the “burden of establishing attorney-client or work product privilege is
on the party asserting the respective privilege.” Aurora Loan Servs., Inc. v. Posner, Posner &
Assocs., P.C., 499 F. Supp. 2d 475, 479 (S.D.N.Y. 2007) (citing United States v. Construction
Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)). In order to satisfy this burden, the
party asserting the privilege is required to provide an adequate privilege log for review by
opposing counsel and the court. See Aurora Loan Servs., Inc., 499 F. Supp. 2d at 479
(recognizing that “[f]ailure to furnish an adequate privilege log is grounds for rejecting a claim
of attorney client privilege”); Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 589, 593
(W.D.N.Y. 1996) (“The party claiming the privilege must supply opposing counsel with
sufficient information to assess the applicability of the privilege or protection, without revealing
information which is privileged or protected.”); Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199,
228 (E.D.N.Y. 2007) (“To the extent Credit Lyonnais withholds documents and responses on the
basis of asserted attorney-client and/or attorney work-product privileges, Credit Lyonnais shall
provide a privilege log identifying those documents and responses and the basis for withholding
them.”); see also Fed. R. Civ. P. 26(b)(5) (setting forth information that a withholding party must
provide in order to “enable other parties to assess the claim”).
[t]o properly demonstrate that a privilege exists, the privilege log
should contain a brief description or summary of the contents of the
document, the date the document was prepared, the person or
persons who prepared the document, the person to whom the
document was directed, or for whom the document was prepared,
the purpose in preparing the document, the privilege or privileges
asserted with respect to the document, and how each element of the
privilege is met as to that document. The summary should be
specific enough to permit the court or opposing counsel to determine
whether the privilege asserted applies to that document.
Burns, 164 F.R.D. at 594. “At the very least, the party claiming the attorney-client privilege
must give evidence that the document ‘was created for the purpose of providing or obtaining
legal rather than business advice.’” Payton Lane Nursing Home, Inc., 2008 WL 5231831, at *4
(quoting Export-Import Bank, 232 F.R.D. at 111); see NXIVM Corp., 241 F.R.D. at 130
(“Without an adequately detailed privilege log, the courts are hamstrung in attempting to
decipher the presence and extent of the claimed privilege. To constitute an acceptable privilege
log, at a minimum, it should provide facts that would establish each element of the claimed
privilege as to each document, and identify each document and the individuals who were parties
to the communications, providing sufficient detail to permit a judgment as to whether the
document is at least potentially protected from disclosure.”) (internal citation omitted).
Therefore, where “a party fails to comply with the requirements of Rule 26(b)(5) when
submitting a privilege log, which is inadequate as a matter of law in that the log just does not
provide sufficient information to support the privilege, the claim of privilege may be denied.”
Trudeau v. N.Y. State Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006) (citing Johnson
v. Bryco Arms, No. 03 CV 2582, 02 CV 3029, 2005 WL 469612, at *3–4 (E.D.N.Y. Mar.1,
In this district, the specific types of information to be included in a privilege log are
further delineated in Local Civil Rule 26.2 which provides that, with respect to documents, a
party shall set forth “(i) the type of document, e.g., letter or memorandum; (ii) the general subject
matter of the document; (iii) the date of the document; and (iv) the author of the document, the
addressees of the document, and any other recipients, and, where not apparent, the relationship of
the author, addressees, and recipients to each other.” Local Civil Rule 26.2(a)(2)(A). Likewise,
with respect to oral communications, a party is required to enumerate “(i) the name of the person
making the communication and the names of persons present while the communication was
made and, where not apparent, the relationship of the persons present to the person making the
communication; (ii) the date and place of communication; and (iii) the general subject matter of
the communication. Id. 26.2 (a)(2)(B).
As such, while “[c]ourts have a degree of discretion in assessing whether a claim of
privilege has been adequately supported,” a party’s privilege log, supporting affidavits and an
in camera review of the documents themselves are generally required to permit a proper inquiry.
CSC Recovery Corp. v. Daido Steel Co., Ltd., 94 CIV. 9294, 1997 WL 661122, at *2 (S.D.N.Y.
Oct. 22, 1997); see Grinnell Corp. v. ITT Corp., 222 F.R.D. 74, 78 (S.D.N.Y. 2003) (examining
privilege log as well as documents themselves in order to determine applicability of the
privilege); In re OM Securities Litigation, 226 F.R.D. 579, 583 (N.D. Ohio 2005) (ordering
production of documents for in camera review along with consideration of privilege log and a
“statement setting forth the specific facts, evidence, and law showing why documents are
protected” in order to properly determine whether privilege applied); Koumoulis v. Independent
Fin. Mktg. Group, Inc., 295 F.R.D. 28, 43 (E.D.N.Y. 2013) (relying on both privilege log and
partial in camera review of documents and ultimately determining that with respect to
documents not provided for in camera review “this Court cannot determine . . . whether these
documents are protected by the . . . work-product privilege”).
Indeed, “[w]hen faced with claims of privilege, courts often undertake in camera review
in order to supplement the parties’ privilege logs and determine the content of the documents.”
Weber v. Paduano, No. 02 Civ. 3392, 2003 WL 161340, at *13 (S.D.N.Y. 2003); see Safeco Ins.
Co. of America v. M.E.S., Inc., No. 09-CV-3312, 2013 WL 1680684, at *4 (noting that “[i]n
camera review is ‘a practice both long-standing and routine in cases involving claims of
privilege.’”) (quoting In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318
F.3d 379, 386 (2d Cir. 2003)); see, e.g., In re Dow Corning Corp., 261 F.3d 280, 282–83
(2d Cir. 2001) (submitting documents to district court for in camera review of attorney-client
and work product claims); In re Richard Roe, Inc., 168 F.3d 69, 71 (2d Cir. 1999) (reviewing
documents in camera to evaluate claims of attorney-client and work product protection); In re
Six Grand Jury Witnesses, 979 F.2d 939, 942 (2d Cir. 1992) (reviewing cost analyses in camera
where witnesses claimed preparation was at behest of counsel and constituted work product); In
re Grand Jury Subpoenas Dated Oct. 22, 1991 & Nov. 1, 1991, 959 F.2d 1158, 1162, 1167 (2d
Cir. 1992) (affirming district court's finding, after in camera review, that subpoenaed telephone
company records did not constitute attorney work product).
It is true that the burden rests squarely on Defendant Bankers Standard to establish the
necessary factual basis for its assertion of the attorney-client privilege. See CSC Recovery Corp.,
1997 WL 661122, at *2 (“The law is clear that the burden is on [the party raising the privilege]
to establish the factual basis for its claim. . . .”). However, a decision as to whether Defendant
can meet its burden in the instant case is entirely premature where the Court lacks the necessary
information and documentation to make such a determination. Indeed, not even the parties
themselves seem able to explicitly articulate what documents are actually at issue other than
through the sweeping descriptions contained in their respective briefs and affidavits.
In light of the foregoing analysis, the Court finds it inappropriate at this time to engage in
a determination of the merits whether the attorney-client privilege applies and, if so, whether the
Subpoena duces tecum should be quashed on that basis. The supporting documentation, which
would enable such an inquiry, is lacking here. The parties seemingly would have this Court
make a sweeping “all or nothing” determination as to privilege. However, such a blanket
approach simply does not comport with the fact-intensive inquiry required in such cases. Indeed,
once the documents are released, the proverbial bell has been rung and cannot later be unrung.
In this regard, the case of Koumoulis v. Independent Financial Marketing Group, Inc. is
instructive. In Koumoulis, the defendant asserted work product privilege to attempt to shield
various documents from production. Koumoulis, 295 F.R.D. at 33. Though the defendant in that
case provided a privilege log and some documents for in camera review, the court noted that the
defendant had ultimately failed to meet its burden since “[a]s to the documents written or
partially written by an attorney, the privilege log provides insufficient information to determine
whether an attorney created these documents because of litigation or whether, absent the threat
of future litigation, no comparable communications would have been created.” Id. at 43. The
court went on to state that this deficiency, coupled with the lack of any affidavits which could
have otherwise demonstrated support, provided a sufficient reason to deny defendant’s claim of
privilege. Id. Despite such an assertion, however, the court in Koumoulis took a more cautious
[i]n an abundance of caution, the Court will allow
Defendants to amend their privilege log to include the
required information for the documents that were not
reviewed in camera. See Fed.R.Civ.P. 26(b)(5)(A). The
Parties should then re-consider whether the production of
any withheld documents is warranted. . . .
Id. Although Bankers Standard has not produced a privilege log in the first instance with respect
to categories of documents set forth in the Subpoena duces tecum at issue here, this Court finds
that the cautious reasoning set forth in Koumoulis is nonetheless applicable. The Court therefore
adopts the approach utilized in Koumoulis.
By July 31, 2017, Bankers Standard shall produce a privilege log in conformity with
Fed. R. Civ. P. 26 and Local Civil Rule 26.2 with respect to any document that it is withholding
on a claim of privilege. Upon production of the privilege log, the parties shall meet and confer
within the following 14 days with respect to those documents on Defendant’s log to which the
Plaintiff claims the privilege should not apply. If, after that meet-and-confer, the parties still
disagree as to whether the privilege applies, Defendant will have until August 30, 2017 to refile
its motion to quash. At that juncture, Defendant will be required to simultaneously provide to
the Court both the privilege log and the documents at issue for an in camera review.
Further, the Court is not inclined, based upon the record before it, to permit Plaintiff to
take the deposition of Brian Gibbons, Esq. at this time. Although Attorney Gibbons is not
Defendant’s counsel of record in this action, there remains a question as to the nature of the
attorney-client relationship between Attorney Gibbons (in his role as coverage counsel to
Defendant) and Defendant (in its role as the putative client) during the course of the
investigations and subsequent coverage determinations rendered with respect to Plaintiff’s
insurance claims. Since Plaintiff seeks to question Attorney Gibbons as to a wide range of areas4
encompassing “[t]he factual background and circumstances related to all aspects of the
investigation undertaken by [GCM], with regard to Plaintiff’s insurance claims for all dates prior
to the time which Defendant had reasonable grounds to reject the insurance claim(s). . . ,” this
determination is appropriate. Agulnick Aff., Ex. E (Subpoena ad testificandum, Attachment B).
Indeed, the Court finds the scope of the current Subpoena to be overly broad in any event.
The issue can be revisited, if necessary, after the parties comply with the directives above as to
the documents at issue.
The attorney-client privilege here — a threshold issue (i.e., the existence and scope of the
attorney-client relationship) — bears upon the ultimate determination whether the deposition of
Attorney Gibbons should be permitted to go forward, and, if so, the scope of questioning that
should be authorized. See Fox Paine & Co., LLC, 51 Misc. 3d 1212(A), 37 N.Y.S.3d 207
(“[j]ust because counsel is engaged as coverage counsel, it does not mean that counsel may not
provide legal advice to his or her client, which would be subject to attorney-client privilege.”);
see 105 St. Assocs., LLC, 2006 WL 3230292, at *3; Tudor Ins. Co., 2003 WL 21488058, at *3
(recognizing that “communications between Tudor [the insurance carrier] and Thurm & Heller
[its coverage counsel] that relate to the provision of legal advice are privileged and need not be
Although depositions of counsel are “not categorically barred,” there is a presumption
“disfavoring attorney depositions” which “is based on the recognition that even a deposition of
counsel limited to relevant and non[-] privileged information risks disrupting the attorney-client
relationship and impeding the litigation.” Kleiman ex rel. Kleiman v. Jay Peak, Inc., No. 1:10CV-83, 2012 WL 2498872, at *5 (D. Vt. June 27, 2012) (quoting Alcon Labs., Inc. v. Pharmacia
Corp., 225 F. Supp. 2d 340, 342 (S.D.N.Y. 2002) (internal quotations omitted));
see N.Y. v. Solvent Chem. Co., 214 F.R.D. 106, 111 (W.D.N.Y. 2003) (“[D]eposition of the
attorney [usually] merely embroils the parties and the court in controversies over the attorneyclient privilege.”) (alteration in original). In addition, “an attorney’s deposition should be
precluded when there are other persons available to testify as to the same information or if
interrogatories are available.” Alcon Labs., Inc., 225 F. Supp. 2d at 343; see also Dufresne-
Simmons v. Wingate, Russotti & Shapiro, LLP, 53 Misc. 3d 598, 606–07, 39 N.Y.S.3d 621, 628
(N.Y. Sup. Ct. 2016) (“[A]n attorney should only be compelled to testify at a deposition when
the proponent establishes that (1) no other means exist to obtain the information than to depose
opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of the case.”); Solvent Chem. Co., 214 F.R.D. at 112
Here, although the record reflects that Attorney Gibbons was involved in certain aspects
of the claims process, see Agulnick Aff., Exs. A-C, it is not altogether clear, at this stage of the
litigation, why Plaintiff is unable to obtain the factual information he seeks directly from
Maffucci and DiGiovanna — the individual claims adjusters tasked with conducting the
investigations of the Sandy Claim and Vandalism Claim respectively and who were responsible
for “advising [Defendant] concerning the scope of the loss and facts that might affect its
coverage determination.” Maffucci Aff. ¶ 5; DiGiovanna Aff. ¶ 7. There may well be others
who are also sources of the information sought. Significantly, Plaintiff’s primary reason for
seeking to depose Attorney Gibbons appears to be predicated upon a purported contradiction
between statements made in the December 19, 2013 and March 19, 2014 letters drafted by
Gibbons on behalf of Bankers Standard concerning the extent to which the HVAC system was
part of the appraisal process. Agulnick Aff. ¶ 10. Aside from this discrete issue, Plaintiff’s only
rationale for seeking to depose Attorney Gibbons is based on the assumption that he was
intimately involved in the “handling of the Claims in the ordinary course of business for
[Defendant]. . . .” Id. ¶ 11. However, notwithstanding Plaintiff’s characterization of Gibbons’
involvement, Gibbons disputes the overall scope of his role in the claims process and asserts that
he “was retained by [Defendant] for the purpose of providing legal advice. As such [he] never
acted as a claims adjuster, but rather, provided legal advice to the claims adjuster assigned by
[Defendant] to each claim.” Gibbons Aff. ¶ 10; see January 30, 2017 Supplemental Affidavit of
Brian Gibbons (“Gibbons Supp. Aff.”), attached as Ex. 2 to the February 1, 2017 Supplemental
Affirmation of Paul C. Ferland (“Ferland Supp. Aff.”) [DE 52-1], ¶ 9 (“All coverage
determinations were made by [Defendant] unilaterally. At no time did I make any coverage
determinations on behalf of [Defendant] with regard to the Sandy and/or Vandalism Claims.”).
Although there remains a factual question as to the overall scope and character of Attorney
Gibbons’ involvement in the claims process, the Court finds, on this record, that the claims
adjusters themselves would have knowledge of the underlying details surrounding the claims
investigations and ultimate coverage determinations — information which could be obtained
through fact depositions and depositions conducted pursuant to Rule 30(b)(6). Plaintiff will be
required to (1) comply with the Court’s ruling above regarding the “privileged” documents and
(2) complete all fact and 30(b)(6) depositions before raising the issue of Attorney Gibbons’
deposition with the Court in the future.
For the reasons stated in this Memorandum and Order, Defendant’s motion to quash is
DENIED, at this time, without prejudice. Once the parties have complied with the directives in
this Order, it is the Court’s expectation that some of the issues raised here, if not all, will have
been resolved. Attorney Gibbons is not required to respond to the existing Subpoena for his
testimony at this time. To the extent any issue is not resolved, presuming that the parties worked
in good faith to achieve a resolution, a revised motion may be brought to the Court promptly. If
the Court finds that any party has not worked in good faith to achieve a resolution, the Court will
take appropriate action. Plaintiff’s Counsel is directed to serve a copy of this Memorandum and
Order on Attorney Gibbons forthwith and to file proof of such service on ECF promptly.
Dated: Central Islip, New York
July 17, 2017
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?