99 Wall Development Inc. v. Allied World Specialty Insurance Company

Filing 189

OPINION AND ORDER ON DEFENDANT'S MOTION TO COMPEL re: 182 MOTION to Compel Plaintiff to Produce filed by Allied World Specialty Insurance Company. For the reasons set forth above, Allied World's motion is gran ted in part and denied in part. 99 Wall shall re-review its privilege log and produce documents in whole or in a redacted format consistent with this decision. The Court attaches a chart with its rulings as to specific documents in the sample. (Signed by Magistrate Judge Katharine H. Parker on 5/26/2020) (Attachments: # 1 Exhibit A) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
99 WALL DEVELOPMENT INC.,
Plaintiff,
-againstALLIED WORLD SPECIALTY INSURANCE COMPANY
formerly known as DARWIN NATIONAL ASSURANCE
COMPANY,

OPINION AND ORDER ON
DEFENDANT’S MOTION TO
COMPEL
18-CV-126 (RA) (KHP)

Defendant.
----------------------------------------------------------------KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Defendant Allied World Specialty Insurance Company f/k/a Darwin National Assurance
Company (“Allied World”) has moved to compel production of certain documents that Plaintiff
99 Wall Development Inc. (“99 Wall”) has withheld on grounds of privilege. See Letter Motion,
ECF No. 167.
BACKGROUND
99 Wall brought this case contending that it is entitled to certain insurance benefits in
connection with losses sustained from two major water incidents that damaged a 29-story
office building that 99 Wall converted into residential condominiums. These events occurred
on July 29, 2016 and October 6, 2016. The Court assumes familiarity with the background facts
and does not repeat them except as relevant to this instant dispute. See ECF Nos. 101, 134.
In late July 2016, 99 Wall hired several consultants to assist it in submitting its insurance
claims to Allied World related to the water events. The consultants included John Panico, a
Public Adjuster from Affiliated Adjustment Group, Thomas Heck, a forensic accountant from
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KPMG, Don Pierro, a construction/physical damage consultant from Casella Construction
Corporation, and James Beach, a delay consultant from James R. Beach Consulting. 99 Wall
represents that it began to routinely consult with its lawyers after the second water event to
minimize its losses and “prepare its claims for litigation.” See Response, ECF No. 187 at 3.
99 Wall submitted its claims for insurance in connection with both water events. The
adjustment process lasted from in or about late 2016 through late 2017. Throughout the
insurance claims adjustment process, Allied World worked with 99 Wall and its consultants to
identify 99 Wall’s covered costs, resulting in payment of nearly $3 million in insurance benefits,
which covered certain aspects of 99 Wall’s claims. Then, on March 16, 2017, the parties met to
discuss resolution of the remainder of 99 Wall’s claim for benefits. In connection with that
meeting, the parties entered into a “White Waiver” Agreement pursuant to which they agreed
to waive any right to offer into evidence or to use in any manner in any dispute between them
the fact of or substance of any discussions between the parties held on that day regarding 99
Wall’s claim and the extent of coverage afforded by Allied World. The White Waiver
Agreement also provided that any and all written materials, documents, spreadsheets, work
papers, presentations, or other data in any form prepared specifically for the March 16, 2017
discussion and not previously provided during the adjustment process would not be subject to
discovery in any litigation of any kind. The parties did not reach an agreement as to the
remaining claims at the meeting. As a follow-up to the meeting, on March 27, 2016, 99 Wall
sent a letter to Allied World setting out 99 Wall’s position as to its entitlement to certain
insurance benefits.

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In response to 99 Wall’s letter, on April 3, 2017, Allied World indicated that it needed
additional information to fully assess the amount of time that 99 Wall claims the project was
delayed by the water incident. Allied World followed up in May 2017 indicating that it was
seeking an appraisal of the remaining claims. According to Allied World, 99 Wall did not
provide the information needed to support payment of further benefits, resulting in 99 Wall
filing this action on January 8, 2018.
99 Wall claims that Allied World engaged in bad faith conduct during the adjustment
period (i.e., between the end of 2016 through the end of 2017) and breached its insurance
contract.
Discovery has been contentious, and this Court has issued several decisions to resolve
disputes, including with respect to privilege. The instant dispute arose after non-parties KPMG
(99 Wall’s accountant) and James Beach (99 Wall’s delay consultant) produced documents
pursuant to subpoenas issued by Allied World. The productions included communications
between and among 99 Wall principals and consultants discussing the adjustment of 99 Wall’s
insurance claims during the adjustment process. After reviewing 99 Wall’s privilege log, Allied
World discovered that some of the KPMG and Beach documents were improperly listed on the
privilege log, while others were left off the log entirely and not otherwise produced. These
initially unproduced or withheld documents contained statements relevant to the insurance
coverage claim, such as statements about 99 Wall’s contractor being behind schedule and
about project schedules not being updated or issued that are relevant to insurance coverage.
The parties met and conferred about Allied World’s concerns that relevant documents
had not been produced or had been improperly withheld as privileged. 99 Wall re-reviewed its
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documents and produced fourteen additional documents. See Letter Motion, ECF No. 167 at 3.
However, Allied World contends that 99 Wall has been overzealous in its privilege designations
and continues to withhold relevant, non-privileged documents. See id. For example, it has
identified documents that have no attorney listed as participating in the communication but
were withheld on the basis of attorney-client privilege or attorney work product, documents
containing communications where an attorney was “cc’d” but which lack any indication that the
communication involved the request for or provision of legal advice, and documents that
include communications to outside consultants who were assisting with claims adjustment, not
litigation. It also identified documents dated after the water incidents and prior to the White
Waiver Agreement that appeared to be non-protected documents and communications about
the adjustment process generally.
99 Wall states that the majority of Allied World’s concerns pertain to documents that
contain claim and case analysis and strategy from 99 Wall’s agents, who were hired to help
prepare 99 Wall’s insurance claim for this litigation. 99 Wall contends that under Federal Rule
of Civil Procedure 26(b)(3)(A), documents prepared by a party’s representatives, consultants,
suretors, and agents in anticipation of litigation may be protected under the work product
doctrine. It further explains that the communications and documents in question would not
have been necessary had there not been an anticipation of litigation and that it became
apparent at the time of the second water event that litigation with Allied World was likely. 99
Wall states that its consultants worked closely with its attorneys to provide them with
information needed to shape its claim against Allied World while the adjustment process was

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ongoing. It argues that its pursuit of an amicable resolution while simultaneously preparing for
litigation does not preclude privilege or work product protection.
After meeting with the parties, this Court directed Allied World to identify a sample of
twenty-five documents on 99 Wall’s log for in camera review. See Order, ECF No. 179.
LEGAL STANDARD
I.

Attorney-Client Privilege
In diversity cases such as this, where state law governs the claims, the Court looks to

state law for determining privilege. See e.g., AIU Ins. Co. v. TIG Ins. Co., No. 07-cv-7052 (SHS)
(HBP), 2008 WL 4067437, at *5 (S.D.N.Y. Aug. 28, 2008) (citations omitted) (applying New York
law), modified on reconsideration, No. 07-cv-7052 (SHS) (HBP), 2009 WL 1953039, at *3
(S.D.N.Y. July 8, 2009) (continuing to apply New York law); see also Fed. R. Evid. 501. The parties
agree that New York law governs.
“The elements of the attorney-client privilege under New York law are the existence of
an attorney-client relationship, a communication made within the context of that relationship
for the purpose of obtaining legal advice, and the intended and actual confidentiality of that
communication.” Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 264 (S.D.N.Y.
1995) (citing People v. Osorio, 75 N.Y.2d 80, 82-84 (1989)). Although the privilege was designed
to promote full and frank communications between a client and counsel, and “thereby promote
broader public interests in the observance of law and administration of justice,” it is narrowly
construed because the application of the privilege renders protected relevant information
undiscoverable. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Hoopes v. Carota,
531 N.Y.S.2d 407, 409 (3d Dep’t 1988) (explaining that the attorney-client privilege “constitutes
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an obstacle to the truth-finding process” and, thus, its “invocation should be cautiously
observed to ensure that its application is consistent with its purpose” (internal quotation
marks, alterations, and citations omitted)), aff’d, 74 N.Y.2d 716 (1989).
A party cannot insulate its communications and documents from discovery in a later
litigation simply by copying an attorney. To be protected, the communication has to pertain
primarily to the request for or provision of legal advice. See Assured Guar. Mun. Corp. v. UBS
Real Estate Sec. Inc., No. 12-cv-1579 (HB) (JCF), 2013 WL 1195545, at *9 (S.D.N.Y. March 25,
2013) (distinguishing communications involving legal matters from business matters); U.S.
Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994). The
privilege does not protect communications primarily serving a business function. See
Varughese v. Mount Sinai Med. Ctr., No. 13-cv-8812 (CM) (JCF), 2014 WL 349698, at *2 (S.D.N.Y.
Jan. 31, 2014); see also AIU Ins. Co., 2008 WL 4067437, at *11 (communications directed by inhouse counsel containing “business-related or technical communications,” and communications
from in-house counsel “in his capacity as Vice President [] giving business advice,” did not
provide legal advice and were therefore not privileged); Spectrum Sys. Int’l Corp. v. Chemical
Bank, 78 N.Y.2d 371, 379 (1991) (“[A] lawyer’s communication is not cloaked with privilege
when the lawyer is hired for business or personal advice, or to do the work of a nonlawyer . . . .
The critical inquiry is whether, viewing the lawyer’s communication in its full content and
context, it was made in order to render legal advice or services to the client.”). In this regard,
courts have recognized that communications between non-attorney consultants and either the
client or the client’s attorney(s), made for the primary purpose of preparing and submitting
insurance claims, may not be within the attorney-client privilege “even where the
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communications from the third-party consultant ‘significantly assisted the attorney in giving his
client legal advice’ and were ‘important to the attorney’s ability to represent the client.’” See
NYAHSA Servs., Inc. Self Ins. Tr. v. People Care Inc., No. 4697-10, 2016 WL 8291966, at *4 (N.Y.
Sup. Ct. Dec. 27, 2016) (quoting United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999)); see
also Varughese, 2014 WL 349698, at *2 (“[I]t is important to distinguish between
communications serving primarily a business function, which are not protected, and
communications made for the purpose of seeking legal advice.” (citations omitted)).
The party asserting the privilege bears the burden of showing that it applies. See, e.g.,
United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011) (citing von Bulow ex rel. Auersperg v.
von Bulow, 811 F.2d 136, 144 (2d Cir. 1987)) (noting the burden and holding privilege to be
waived where inmate conveyed privileged information to his sister over a phone line he knew
was being recorded); Priest v. Hennessy, 51 N.Y.2d 62, 69 (1980) (noting the burden and holding
attorney-client privilege did not apply where existence of attorney-client relationship was not
shown); Hoopes, 531 N.Y.S.2d at 409-10 (noting to the burden and holding an exception to
privilege applied where “defendant failed to advance a basis upon which the attorney-client
privilege should appropriately be extended to the information sought”).
In addition to bearing the burden of establishing privilege, the party asserting privilege
bears the burden of showing that privilege was not waived. See Pearlstein v. BlackBerry Ltd.,
No. 13-cv-07060 (CM) (KHP), 2019 WL 1259382, at *6 (S.D.N.Y. Mar. 19, 2019); Egiazaryan v.
Zalmayev, 290 F.R.D. 421, 428 (S.D.N.Y. 2013) (citing John Blair Commc’ns, Inc. v. Reliance
Capital Grp., 582 N.Y.S.2d 720 (1st Dep’t 1992)). There are various types of waivers. In this
case, the only one mentioned in the motion papers is waiver by disclosure to a person outside
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of the attorney-client relationship. Under New York law, “[d]isclosure of a privileged document
generally operates as a waiver of the privilege unless it is shown that the client intended to
maintain the confidentiality of the document, [and] that reasonable steps were taken to
prevent disclosure . . . .” New York Times Newspaper Div. of New York Times Co. v. Lehrer
McGovern Bovis, Inc., 752 N.Y.S.2d 642, 645-46 (1st Dep’t 2002) (citations omitted); see also
Osorio, 75 N.Y.2d at 84. However, if the third party outside of the attorney-client relationship is
an agent of the attorney or client, then the disclosure may not result in a waiver. See Netherby
Ltd. v. G.V. Trademark Investments, Ltd., 689 N.Y.S.2d 488, 489 (1st Dep’t 1999) (citing Le Long
v. Siebrecht, 187 N.Y.S. 150, 151 (2nd Dep’t 1921)).
New York courts have developed a two-prong test to determine whether disclosure by a
party to a purported agent of the party results in waiver of the attorney-client privilege.
Although no formal agency agreement is required, the party asserting privilege must
demonstrate that when it disclosed the privileged communication to the purported agent: (1)
it had a “‘reasonable expectation of confidentiality under the circumstances,’” and (2) the
disclosure “was necessary for the client to obtain informed legal advice.” Ross v. UKI Ltd., No.
02-cv-9297 (WHP) (JCF), 2004 WL 67221, at *3 (S.D.N.Y. Jan. 15, 2004) (quoting Osorio, 75
N.Y.2d at 84 & quoting Nat’l Educ. Training Grp., Inc. v. Skillsoft Corp., No. M8–85, 1999 WL
378337, at *3 (S.D.N.Y. June 10, 1999)). To meet the second prong of the test, the party
asserting privilege must demonstrate “that the involvement of the third party [was] nearly
indispensable or serve[d] some specialized purpose in facilitating the attorney-client
communications.” Id. (internal quotation marks and citation omitted). Likewise, a company’s
attorney may hire an outside consultant if needed to assist the attorney in rendering legal
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advice. Communications between the attorney and the consultant in this circumstance also will
be protected by the attorney-client privilege and/or work product doctrine (discussed below).
See, e.g., MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 941 N.Y.S.2d 56, 58 (1st Dep’t 2012)
(communications prepared by consultants hired by plaintiff’s counsel were protected by
attorney-client and work product privilege because the communications were explicitly and
contractually prepared in anticipation of litigation and advised plaintiff of the potential claims it
could raise against defendant).
II.

Work Product Doctrine
Rule 26(b)(3) of the Federal Rules of Civil Procedure also provides protection to certain

documents and communications prepared in anticipation of litigation. The rule provides that
“[o]rdinarily, 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, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P.
26(b)(3)(A); see also Hickman v. Taylor, 329 U.S. 495 (1947) (establishing and articulating
application of the work product doctrine); Welland v. Trainer, No. 00-cv-0738 (JSM), 2001 WL
1154666, at *2 (S.D.N.Y. Oct. 1, 2001) (if a document “is created because of the prospect of
litigation, analyzing the likely outcome of that litigation” it is eligible for work product
protection (quoting United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)).
The key factor in determining applicability of this doctrine is whether the documents or
things were prepared “with an eye toward” or “in anticipation of” or “because of the prospect
of litigation.” Adlman, 134 F.3d at 1196 (quoting Hickman, 329 U.S. at 510-511), 1202 (citing
Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, 8 Fed. Prac. & Proc. Civ. § 2024 (3d
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ed. 1994). “[T]he doctrine is not satisfied merely by a showing that the material was prepared
at the behest of a lawyer or was provided to a lawyer. Rather the materials must result from
the conduct of investigative or analytical tasks to aid counsel in preparing for litigation.” Wultz
v. Bank of China Ltd., 304 F.R.D. 384, 393-94 (S.D.N.Y. 2015) (internal quotation marks and
citation omitted). Thus, a court must determine if the materials would have been prepared in
essentially similar form irrespective of the litigation. See Allied Irish Banks v. Bank of Am., N.A.,
240 F.R.D. 96, 106 (S.D.N.Y. 2007) (quoting Adlman, 134 F.3d at 1204). But, unlike the rule for
invoking attorney-client privilege, the predominant purpose of the work product need not be to
assist with litigation to be protected; rather, the work product need only have been prepared or
obtained because of the prospect of litigation. See Adlman, 134 F.3d at 1202; Wultz, 304 F.R.D.
at 393-94. At the same time, the mere prospect of litigation does not confer work product
status on documents that are otherwise created for normal business purposes. Gucci Am., Inc.
v. Guess?, Inc., 271 F.R.D. 58, 74 (S.D.N.Y. 2010).
Work product comes in two forms. Opinion work product consists of the mental
impressions, conclusions, opinions, and legal theories of an attorney or other representative of
a party, and is given heightened protection. Fact work product consists of factual material,
including the results of a factual investigation. This latter type of work product is subject to
disclosure “upon a showing of substantial need and inability to obtain the equivalent without
undue hardship.” Upjohn, 449 U.S. at 400; see also Hickman, 329 U.S. at 511-12; Adlman, 134
F.3d at 1204.
Courts in the Second Circuit have held that “[a] substantial need exists ‘where the
information sought is “essential” to the party's defense, is “crucial” to the determination of
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whether the defendant could be held liable for the acts alleged, or carries great probative value
on contested issues.’” Gucci Am., 271 F.R.D. at 74-75 (quoting Nat’l Cong. for Puerto Rican
Rights v. City of New York, 194 F.R.D. 105, 110 (S.D.N.Y. 2000)). The documents must “have a
unique value apart from those already in the movant’s possession.” FTC v. Boehringer
Ingelheim Pharm., Inc., 778 F.3d 142, 155-56 (D.C. Cir. 2015). Disclosure is warranted only
when the moving party makes a strong showing of the relevance and importance of the fact
work product and that “it is likely to be significantly more difficult, time-consuming or
expensive to obtain the information from another source.” In re Aggrenox Antitrust Litig., No.
14-md-2516 (SRU), 2017 WL 5885664, at *15 (D. Conn. Nov. 29, 2017) (internal citations
omitted).
DISCUSSION
Allied World identified twenty-five documents on 99 Wall’s privilege log as a sample for the
Court’s review. Initially, 99 Wall asserted attorney-client privilege over fifteen of the twentyfive sample documents and work product protection over twenty-three of the twenty-five
sample documents. 99 Wall also claimed that one of the sample documents was protected by
the parties’ White Waiver Agreement. In the briefing, 99 Wall withdrew its objections to
producing three of the twenty-five documents, leaving twenty-two for the Court to review in
camera. 99 Wall also withdrew its contention that one of the documents is protected by the
White Waiver Agreement, but still maintains the document is protected work product.
There are three documents dated January 4, 2017 or earlier, from the period when 99 Wall
was collecting information and submitting its claims for insurance (the “claim period”) for which

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99 Wall maintains designations. 99 Wall asserts work product protection over two of the
documents and both work product and attorney-client privilege protection over one.
One of the documents, dated March 13, 2017, 99 Wall maintains is protected work product.
Thirteen of the documents 99 Wall maintains designations for are emails dated from the
period March 16, 2017 through March 27, 2017—the period immediately following the
settlement meeting on March 16, 2017 and prior to sending the follow-up letter to Allied World
on March 27, 2017 (the “claim settlement period”). 99 Wall asserts both attorney-client and
work product protection over eight of these documents, work product and White Waiver
Agreement protection over one document, and only work product as to four of the documents.
The remaining five documents were created after Allied World sent its April 3, 2017 letter
seeking additional information and/or an independent adjuster for the claims (the “post
adjustment letter period”). 99 Wall claims that two of these documents are protected by the
attorney-client privilege and three are protected by both the attorney-client privilege and work
product doctrine.
Most of the documents that 99 Wall has marked as attorney-client privilege in fact are not
protected by the privilege for the simple reason that they do not seek or convey legal advice.
These include 99Wall_Privilege0574, 0576, 0870, 0893, 0900, 0904, 0956, 1976, and the email
chain dated May 17, 2017. Although in some cases an attorney is included in the
communication, the communication pertains to scheduling or non-legal matters and therefore
is not protected. 99 Wall clearly has been overzealous in its designations as to this privilege or
misunderstands the limited scope of the privilege. The email chain numbered
99Wall_Privilege0888 reflects communications with counsel about a draft of the March 27,
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2017 letter which was ultimately sent to Allied World. This document was appropriately
designated as privileged. 1 The email chain numbered 99Wall_Privilege1932 reflects client
notes on the April 3, 2017 Allied World letter that were prepared for counsel to obtain legal
advice on the claim and are privileged. The email chain dated April 28, 2017 between and
among J. Picone, J. Panico, and T. Heck likewise reflects legal advice sought and conveyed and is
therefore privileged.
Lastly, two documents are partly privileged. The top five emails in the chain of
99Wall_Privilege0936 and the top three emails in the chain of 99 Wall_Privilege0991, both
dated March 21, 2017, contain a request for and conveyance of legal advice and are privileged.
These two documents also contain an email from T. Heck to J. Picone dated March 20, 2017 at
7:37 p.m. which discusses potential litigation and appears to have initiated the email chain with
counsel. The first paragraph of this email can be redacted as privileged and work product as it
appears to have prompted the emails with counsel that followed and reflects a communication
that was clearly in anticipation of litigation. The remainder of the Heck/Picone email and the
remaining emails in the chain are not privileged because they do not convey or request legal
advice and are not work product as they are merely collecting support for 99 Wall’s insurance
claims in response to questions that came up at the March 16, 2017 meeting and appear not to
have been made because of anticipated litigation, but rather to support 99 Wall’s insurance
claim. While 99 Wall may have feared litigation as a possibility, Allied World had not denied the

However, the document is not protected in its entirety as the initial email of the chain is neither within the
attorney-client privilege nor protected by the word product doctrine.
1

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claim for benefits or requested the independent adjuster at that point, and 99 Wall was
answering questions in pursuit of its claim to its insurer.
In insurance matters, it is often difficult to determine when work product protection might
apply. This is because it is routine for insurance companies to investigate claims while at the
same time the potential for litigation is ever present. See The American Insurance Co. v. Elgot
Sales Corp., No. 97-cv-1327 (RLC), 1998 WL 647206, at *1 (S.D.N.Y. Sept. 21, 1998). Most of the
cases involving insurance matters involve an insured seeking documents from an insurer.
Generally, courts in this District have found that documents created by the insurer after it has
declined coverage are presumed, or at least more likely, to have been created in anticipation of
litigation and to be work product, whereas documents that are part of the claim investigation
process are not typically work product. See Great American Ins. Co. of New York v. Castleton
Commodities Int’l LLC, 15 Civ. 3976, 2015 WL 6437397, *2 (S.D.N.Y. Oct. 15, 2015) (citing
Stephenson Equity Co. v. Credit Bancorp., Ltd., No. 99-cv-11395 (RWS), 2002 WL 59418, at *3
(S.D.N.Y. Jan. 16, 2002). However, a case-by-case assessment of the facts is necessary to make
the determination. See Adlman, 134 F.3d at 1202 (work product protection must be evaluated
“’in light of the nature of the document and factual situation in the particular case” (quoting
Wright, Miller, & Marcus, § 2024)).
In Great American Ins. Co. of New York, the Court held that the insured could not assert
work product protection for documents created before their submission of proof of loss. See
2015 WL 6437397, at *4. It made the distinction between making a case to the insurers and a
case against the insurers in court as the dividing line for when documents could properly be

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deemed work product and not documents created in the ordinary course of submitting a claim.
Id.
The chronology of events alone is not determinative in ascertaining whether documents
were prepared in anticipation of litigation. The party asserting work product protection bears
the “burden of demonstrating that the documents would not have been prepared but for the
litigation.” Grinnell Corp. v. ITT Corp., 222 F.R.D. 74, 78 (S.D.N.Y. 2003) (quoting Weber v.
Paduano, No. 02-cv-3392 (GEL), 2003 WL 161340, at *7 (S.D.N.Y. Jan. 22, 2003)) (finding
documents regarding insurer’s position on indemnification and analysis of agreement were
work product because they supported inference that insurer anticipated it might challenge its
obligation to indemnify insured and thus could fairly be said to have been created because of
the prospect of litigation).
Keeping the above in mind, most of the documents that 99 Wall has designated as work
product are not in fact work product. The three documents dated from January 4, 2017 or
earlier are not work product. 99 Wall has produced no facts to support its argument that these
documents were created in anticipation of litigation. Rather, they appear to have been created
in the normal course of preparing a claim to the insurer. That 99 Wall already may have
retained counsel does not confer work product protection to communications between and
among non-lawyers and consultants hired to assist with submission of the insurance claim
about costs to be submitted to support the insurance claim. Nothing in these emails reveals
any litigation strategy or thoughts of an attorney. All are routine business, not legal,
communications.

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The email from March 13, 2017, is protected. This communication was a planning
communication for the settlement meeting on March 16, 2017 and falls within the protection
of the White Waiver Agreement and can fairly be said to reveal strategy for discussing a
settlement of the claim in lieu of litigation and is not merely collection of information pertinent
to submission of the claim to Allied World so that it could determine coverage.
The documents dating from March 16, 2017 to March 27, 2017 require closer scrutiny, as
these were generated after the March 16 settlement meeting at which no resolution of the
claims was reached. Based on the Court’s review of these documents, it appears that 99 Wall
gathered additional information in response to issues raised at the March 16, 2017 meeting to
supply to Allied World in its March 27, 2017 letter. The prospect of litigation was certainly
greater at this time, but Allied World had not yet sent the letter requesting an adjuster and had
not formally denied the claim. 99 Wall had engaged counsel at this time to review a draft of
the March 27, 2017 letter, but the information gathered appears to have been in response to
specific questions from Allied World and in pursuit of resolving the claim with Allied World—
not against Allied World in litigation. In addition to the portion of the two email chains noted
above that contain work product, the following documents from the claim settlement period
contain work product: top two emails in email chain dated March 16, 2017 between J. Picone
and C. O’Bryne, which discuss the prospect of litigation; top email and first paragraph of email
dated from March 20, 2017 at 7:37 p.m. in document 99Wall_Privilege 2025; first paragraph of
email dated from March 20, 2017 at 7:37 p.m. in document 99Wall_Privilege0991 and
document 99Wall_Privilege0904. The remainder of the email communications concern
collection of information pertinent to the claim to the insurer, and 99 Wall has failed to present
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facts demonstrating that these emails would have been prepared differently but for the
prospect of litigation. That is, although litigation might have been a possibility, 99 Wall was still
making its claim to its insurer, and the communications all appear to be in pursuit of that
business function. Nothing in the communications reveals any legal strategy.
Finally, there are three documents in the sample that post-date March 27, 2017 that 99
Wall claims are protected by the work product doctrine. The Court addresses them to the
extent they are not protected by the attorney-client privilege. Document 99Wall_Privilege1976
and its top seven emails—beginning with the email sent at 9:10 a.m., dated November 16,
2017—discuss Allied World’s final settlement offer preceding the institution of this lawsuit.
These were created in anticipation for litigation, contain mental impressions constituting
opinion work product, and clearly do not relate to the regular claims filing process. The last
document, 99Wall_Privilege0893 is not work product because it is merely a communication
among non-lawyers conveying a draft of a letter that was sent to Allied World. It does not
reveal any legal strategy, and 99 Wall supplies no information to indicate why the
communication was had in anticipation of litigation as opposed to simply being 99 Wall’s final
position as to its claim to Allied World in advance of the independent adjuster evaluating the
claim. Therefore, 99 Wall has failed to meet its burden of demonstrating why work product
protection should attach.
CONCLUSION
For the reasons set forth above, Allied World’s motion is granted in part and denied in part.
99 Wall shall re-review its privilege log and produce documents in whole or in a redacted

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Case 1:18-cv-00126-RA-KHP Document 189 Filed 05/26/20 Page 18 of 18

format consistent with this decision. The Court attaches a chart with its rulings as to specific
documents in the sample.

SO ORDERED.
Dated: May 26, 2020
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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