Massachusetts Bay Insurance Co. et al v. Seneca Insurance Company Inc et al

Filing 181

ORDER with respect to 178 Letter Motion to SealI will treat this as a motion (and it should have been made as a motion - I do not accept "letter motions"). Response due September 30, Reply October 7. (Signed by Judge Colleen McMahon on 9/23/2024) (jca)

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and information as "Confidential" during the course of discovery. The Order also included the
following provisions:
7.
Filing of Confidential Information. Any party
wishing to file a document designated as Confidential Information
in connection with a motion, brief, or other submission to the Court
shall do so under seal. Any such filing must comply with the Federal
and Local Rules and Procedures, including the "Rules for
Redactions and Filing Under Seal" contained in the Appendix to
Honorable Lehrburger's Individual Practices in Civil Cases which
are incorporated herein.
8.
Privileged Documents. Privileged documents are
not addressed by this Order except that documents that are
privileged as to one party but not as to another shall be produced to
the party to whom the document is not privileged, and the document
may be designated as Confidential Information.
Among the discovery exchanged in this declaratory judgment action are claim notes and
status reports pertaining to the underlying personal injury case. Initially, the claim notes and
reports containing privileged and confidential information regarding defense strategy for the
underlying action were redacted out of consideration for the privileges and rights of the underlying
defendants.1 However, at the request of Defendant Seneca Insurance Co. ("Seneca") (ECF
No. 82), the Court entered two Orders dated September 13 and 27, 2022 (ECF Nos. 97 & 100)
compelling Plaintiffs to remove certain redactions, thereby giving the insurance defendants access
to Plaintiffs' full claim file with minimal redactions.
It is these unredacted documents pertaining to the underlying action that are the subject of
this letter motion. Both Plaintiffs and Seneca have e-filed redacted motions and separately

1

Notably, at the time this discovery was requested exchanged, the underlying action remained
ongoing, and the underlying plaintiffs, Ri Xian Wang and Mei Ying Lin (collectively, the
"Claimants") were involved in this declaratory judgment action as interested parties.

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submitted unredacted versions to the Court pursuant to the Confidentiality Order and the Court's
September 5, 2024 Memo Endorsement. For the reasons that follow, Plaintiffs respectfully request
the entry of an Order pursuant to Federal Civil Rule 5.2 sealing those portions of the motion record
that encroach upon the privileges and protections of the underlying defendants, as well as the
Plaintiffs and their agents and representatives.
LEGAL ARGUMENT
THE CIRCUMSTANCES OF THIS CASE REQUIRE THE
SEALING OF PORTIONS OF THE MOTION RECORD TO
PROTECT THE PRIVILEGES AND CONFIDENTIALITY
OF THE UNDERLYING DEFENDANTS.
Although our courts have recognized "a general right to inspect and copy public records
and documents, including judicial records and documents," that right "is not absolute" (Nixon v
Warner Comm'cns., Inc., 435 US 589, 597–98 [1978]). As the Supreme Court has made clear,
"[e]very court has supervisory power over its own records and files, and access has been denied
where court files might have become a vehicle for an improper purpose" (id. at 598; see also In re
Applications to Unseal 98 CR 1101(ILG), 568 Fed Appx 68, 69 [2d Cir 2014] [Summary Order]
["The right of access is, of course, qualified, and documents may be sealed in some cases."]).
Moreover, the Court has held that "the decision as to access is one best left to the sound discretion
of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the
particular case" (Nixon, 435 US at 599).
"'The Second Circuit has articulated a three-step process for determining whether
documents should be placed under seal'" (JJS v Petrucci, 2024 WL 3518520, at *1 [SDNY July
23, 2024], quoting Church Ins. Co. v ACE Prop. & Cas. Ins. Co., 2010 WL 3958791, at *2 [SDNY
Sept. 23, 2010]). The Court must first determine whether the documents are "judicial documents,"

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i.e., "documents that are 'relevant to the performance of the judicial function and useful in the
judicial process'" (id., quoting Lugosch v Pyramid Co. of Onondaga, 435 F3d 110, 119 [2d Cir.
2006]). The Court must then consider "the weight of the presumption of access and the public's
First Amendment right to access the documents" (id.). Finally, the Court "must 'balance competing
considerations' against the presumption of full public access" (id., quoting Lugosch, 435 F3d at
120). Put differently, the Court must determine whether sealing "'is essential to preserve higher
values and is narrowly tailored to serve that interest'" (Bernstein v Bernstein Litowitz Berger &
Grossman LLP, 814 F3d 132, 144 [2d Cir 2016], quoting In re N.Y. Times Co., 828 F2d 110, 116
[2d Cir 1987]).
In the instant matter, there is no dispute that the items in question are "judicial documents"
subject to a presumption of access. The question before the Court is whether that presumption is
outweighed by the countervailing interests of privilege and confidentiality. Specifically, Plaintiffs
maintain that the documents and information at issue (described in more detail below) are
protected by the attorney-client privilege and the work product doctrine.2
"The attorney-client privilege protects 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 F3d 126, 132 [2d Cir 2011]).
Notably, in an insurance defense context, the "common interest rule" extends the privilege to

2

It bears noting that Plaintiffs themselves are not the holders of the attorney-client privilege. As
the Second Circuit has acknowledged, "[t]he attorney-client privilege belongs to the client"
(United States v Amodeo, 71 F3d 1044, 1052 [2d Cir 1995]). With the exception of the Weisses
and 2939, however, the "clients" at issue are not parties to this case. It is out of an abundance of
caution, and a desire to avoid unwarranted disclosure of privileged and confidential information,
that the undersigned submits this application for the Court's consideration.

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communications among the insured, their assigned defense counsel, and the carrier (see, e.g.,
United States v Schwimmer, 892 F2d 237, 243–44 [2d Cir 1989] [explaining the common interest
rule and the basis therefor]; Tudor Ins. Co. v Golovunin, 2010 WL 11627209, at *3 [EDNY April
15, 2010] [explaining that the common interest rule extends the attorney-client privilege to include
disclosures to an insurer who is providing representation in an underlying lawsuit]). Like the
attorney-client privilege itself, the common interest rule is intended "'to protect the free flow of
information from client to attorney'" (Schwimmer, 892 F2d at 243, quoting Capra, The AttorneyClient Privilege in Common Representations, 20 Trial Lawyers Quarterly, Summer 1989, at 21).
Along the same lines, the work product doctrine codified in Federal Civil Rule 26(b)(3)
"'shields from disclosure materials prepared in anticipation of litigation by a party or the party's
representative, absent a showing of substantial need'" (Complex Systems, Inc. v ABN AMRO Bank
N.V., 279 FRD 140, 145 [SDNY 2011], quoting United States v Adlman, 68 F3d 1495, 1501 [2d
Cir 1995]). "The purpose of the rule is to afford a litigant 'a zone of privacy in which [his] lawyer
can prepare and develop legal theories and strategy with an eye toward litigation, free from
unnecessary intrusion by his adversaries'" (id. [alteration in original], quoting United States v
Adlman, 134 F3d 1194, 1196 [2d Cir 1998]). The greatest protections under the work product
doctrine are afforded to "an attorney's mental impressions, conclusions, opinions, or legal theories
concerning litigation" (id.).
The Second Circuit "ha[s] implied — but never expressly held — that protection of the
attorney-client privilege is a 'higher value' under the First Amendment that may rebut the
presumption of access" (Bernstein, 814 F3d at 145, citing). It is therefore not uncommon for
filings containing privileged communications and work product to be sealed by the court (see, e.g.,

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Novartis Int'l Pharm. AG v Incyte Corp., 2024 WL 3606508, at *1 [SDNY July 29, 2024] [holding
that "because the document at the heart of the sealing request has been determined to be privileged
work product, the countervailing interest of preserving the privilege outweighs the presumption of
public access"]; United Specialty Ins. Co. v. LIC Contracting, Inc., 2022 WL 74157, at *5 [EDNY
Jan. 6, 2022] [granting motion to file documents under seal "because they contain attorney-client
communications or references thereto, communications and notes regarding litigations strategy,
and attorney work product, such as confidential mediation statements and calculations relating to
settlement value"]; Moshell v Sasol Limited, 2021 WL 67107, at *1 [SDNY Jan. 4, 2021] [holding
that "Plaintiff's interest in limiting the dissemination of confidential material outweigh the
presumption of public access" to documents and correspondence prepared by a private investigator
and the attorneys who retained them].
Against this backdrop, Plaintiffs respectfully request an order sealing the following items:

3

Document

Description

Joint Exhibit 163

July 6, 2017 Letter from Sim
R. Shapiro, Esq. to Donna
Normile (Hanover)

Basis for Sealing
This letter from assigned
defense counsel to the carrier
regarding the underlying
action is protected by the
attorney-client privilege.

This exhibit is annexed to the parties' Rule 56.1 Joint Statement of Undisputed Material Facts.

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4

Limbach Exhibit 14

August 19, 2016 Claim Note
of Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, regarding the
underlying claim and is
therefore protected work
product.

Limbach Exhibit 2

September 28, 2016 Claim
Note of Joseph Pender

This claim note contains and
reflects the mental impressions
and analysis of Ms. Normile's
supervisor, Joseph Pender,
regarding the underlying claim
and is therefore protected
work product.

Limbach Exhibit 3

November 7, 2016 MBIC
Letter to Industria

This letter from an insurance
carrier to its insured regarding
the assignment of counsel for
the underlying claim is
protected work product.

Limbach Exhibit 4

November 21, 2016 E-mail/
Claim Note from Donna
Normile

This e-mail and claim note
contains and reflects the
mental impressions and
analysis of the assigned claim
adjuster, Donna Normile,
regarding the underlying claim
and is therefore protected
work product.

These exhibits are annexed to the Declaration of Jared J. Limbach filed in support of Plaintiffs'
motion for summary judgment.

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Limbach Exhibit 5

January 21, 2017 Claim Note
of Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
James Sawicki, Esq.,
regarding the underlying claim
and is therefore protected
work product. The
communications are also
protected by the attorneyclient privilege.

Limbach Exhibit 6

May 5, 2017 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
James Sawicki, Esq.,
regarding the underlying claim
and is therefore protected
work product. The
communications are also
protected by the attorneyclient privilege.

Limbach Exhibit 7

May 5, 2017 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, regarding the
underlying claim and is
therefore protected work
product.

Limbach Exhibit 8

June 14, 2017 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, regarding the
underlying claim and is
therefore protected work
product.

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Limbach Exhibit 9

June 16, 2017 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
James Sawicki, Esq.,
regarding the underlying claim
and is therefore protected
work product. The
communications are also
protected by the attorneyclient privilege.

Limbach Exhibit 10

June 28, 2017 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
James Sawicki, Esq.,
regarding the underlying claim
and is therefore protected
work product. The
communications are also
protected by the attorneyclient privilege.

Limbach Exhibit 11

July 20, 2017 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, regarding the
underlying claim and is
therefore protected work
product. The claim note also
references communications
with defense counsel that are
protected by the attorneyclient privilege.

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Limbach Exhibit 12

June 1, 2018 E-mail and
Letter from Sim R. Shapiro,
Esq. to Donna Normile

This report from assigned
defense counsel to the carrier
contains analysis of the
underlying claim and is
protected by the attorneyclient privilege and work
product doctrine.

Limbach Exhibit 13

May 14, 2019 E-mail and
Letter from Sim R. Shapiro,
Esq. to Donna Normile

This report from assigned
defense counsel to the carrier
contains analysis of the
underlying claim and is
protected by the attorneyclient privilege and work
product doctrine.

Limbach Exhibit 14

May 16, 2019 Claim Note of
Donna Normile

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
Sim Shapiro, Esq., regarding
the underlying claim and is
therefore protected work
product. The communications
are also protected by the
attorney-client privilege.

Limbach Exhibit 15

May 22, 2019 Claim Note of
Joseph Pender

This claim note contains and
reflects the mental impressions
and analysis of Ms. Normile's
supervisor, Joseph Pender,
regarding the underlying claim
and is therefore protected
work product.

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Limbach Exhibit 16

September 3, 2019
Memorandum from nurse
Kathy Lamb to Donna
Normile

This report prepared by an
agent of the insurance carrier
is protected work product.
The memorandum also
contains detailed personal
medical information regarding
the underlying claimant, Ri
Xian Wang.

Limbach Exhibit 17

November 7, 2019 E-mail
and Letter from Sim R.
Shapiro, Esq. to Donna
Normile

This report from assigned
defense counsel to the carrier
contains analysis of the
underlying claim and is
protected by the attorneyclient privilege and work
product doctrine.

Limbach Exhibit 18

November 18, 2019 IME
Report of Dr. Robert April

This IME report contains
detailed personal medical
information regarding the
underlying claimant, Ri Xian
Wang.

Limbach Exhibit 21

February 3, 2020 E-mail and
Letter from Sim R. Shapiro,
Esq. to Donna Normile

This report from assigned
defense counsel to the carrier
contains analysis of the
underlying claim and is
protected by the attorneyclient privilege and work
product doctrine.

Limbach Exhibit 22

October 26, 2021 Claim Note
of Philip Pancoast

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Philip
Pancoast, regarding the
underlying claim and is
therefore protected work
product.

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Limbach Exhibit 23

November 2, 2021 Letter
from Sim R. Shapiro, Esq. to
Donna Normile and Philip
Pancoast

This report from assigned
defense counsel to the carrier
contains analysis of the
underlying claim and is
protected by the attorneyclient privilege and work
product doctrine.

Limbach Exhibit 24

August 10, 2022 Claim Note
of Philip Pancoast

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
Sim Shapiro, Esq., regarding
the underlying claim and is
therefore protected work
product. The communications
are also protected by the
attorney-client privilege.

Limbach Exhibit 25

September 20, 2022 Claim
Note of Philip Pancoast

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
Sim Shapiro, Esq., regarding
the underlying claim and is
therefore protected work
product. The communications
are also protected by the
attorney-client privilege.

Limbach Exhibit 26

September 20, 2022 Claim
Note of Philip Pancoast

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
Sim Shapiro, Esq., regarding
the underlying claim and is
therefore protected work
product. The communications
are also protected by the
attorney-client privilege.

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Limbach Exhibit 27

October 26, 2022 Claim Note
of Philip Pancoast

This claim note contains and
reflects the mental impressions
and analysis of the assigned
claim adjuster, Donna
Normile, and defense counsel,
Sim Shapiro, Esq., regarding
the underlying claim and is
therefore protected work
product. The communications
are also protected by the
attorney-client privilege.

Limbach Exhibit 28

Excerpts from the January 29, Plaintiffs propose to redact
2024 Deposition of Donna
T18:3 to 19:18. This
Normile
testimony discusses at length a
legal assessment by assigned
defense counsel (James
Sawicki, Esq.) regarding
additional insured coverage, as
well as his communications
with Donna Normile on that
subject.

Plaintiffs' SOMF ¶ 33

Description of the mental
impressions and analysis of
Joseph Pender

For the reasons set forth above
for Limbach Exhibit 2, Mr.
Pender's mental impressions
and analysis are protected
work product.

Plaintiffs' SOMF ¶¶ 38–39

Description of the mental
impressions and analysis of
Donna Normile

For the reasons set forth above
for Limbach Exhibit 4, Ms.
Normile's mental impressions
and analysis are protected
work product.

Plaintiffs' SOMF ¶ 41

Description of
communication between
adjuster Donna Normile and
defense counsel

This communication is
protected by the attorneyclient privilege.

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Plaintiffs' SOMF ¶ 44

Description of
communications between
adjuster Donna Normile and
defense counsel

These communications are
protected by the attorneyclient privilege. The mental
impressions and analysis of
defense counsel are also
protected work product.

Plaintiffs' SOMF ¶ 46

Description of the mental
impressions and analysis of
adjuster Donna Normile and
communications between Ms.
Normile and defense counsel

Ms. Normile's mental
impressions and analysis are
protected work product, and
her communications with
defense counsel are protected
by the attorney-client
privilege.

Plaintiffs' SOMF ¶ 50

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Plaintiffs' SOMF ¶ 52

Description of litigation plan
reflected in claim note

This claim note reflects the
mental impressions and
analysis of adjuster Donna
Normile and is protected work
product.

Plaintiffs' SOMF ¶ 56

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Plaintiffs' SOMF ¶ 61

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Plaintiffs' SOMF ¶ 62

Description of the mental
impressions and analysis of
adjuster Donna Normile

As stated for Limbach Exhibit
14 and 15 above, Ms.
Normile's mental impressions
and analysis are protected
work product.

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Plaintiffs' SOMF ¶ 63

Descriptions of analysis by
nurse Kathy Lamb

As stated for Limbach Exhibit
16 above, Ms. Lamb's mental
impressions and analysis are
protected work product.

Plaintiffs' SOMF ¶ 91

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Plaintiffs' SOMF ¶ 92

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Plaintiffs' SOMF ¶ 93

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Plaintiffs' SOMF ¶ 122

Description of mock jury
analysis undertaken by
MBIC/Hanover

This analysis was undertaken
in furtherance of the
underlying litigation and is
protected work product.

Plaintiffs' SOMF ¶ 123

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege and represent
protected work product.

Plaintiffs' SOMF ¶ 126

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege and represent
protected work product.

Plaintiffs' SOMF ¶ 127

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege and represent
protected work product.

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Plaintiffs' SOMF ¶ 127

Description of
communications between
defense counsel and
MBIC/Hanover and internal
communications at
MBIC/Hanover

These communications are
protected by the attorneyclient privilege and represent
protected work product.

Plaintiffs' SOMF ¶ 128

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

McKenna Exhibit 35

Excerpts from the January 24, Plaintiffs propose to redact
2024 deposition of Philip
T263:5 to 269:25. This
Pancoast
section of the transcript
contains significant quotations
from and discussions of claim
notes that are protected by the
attorney-client privilege and
work product doctrine.

Valverde Exhibit Z6

Collected excerpts from
Plaintiffs' claim file for the
underlying action

MBIC/Hanover 1200–03
consists of a series of e-mails
between the claim adjuster
(Donna Normile) and assigned
defense counsel (James
McCarthy, Esq. and James
Sawicki, Esq.) regarding their
retention in the underlying
action. It is protected by the
attorney-client privilege.

5

This exhibit is annexed to the Declaration of John McKenna, Esq. filed in support of Great
American's motion for summary judgment.
6

This exhibit is annexed to the Declaration of Frank Valverde, Esq. filed in support of Seneca's
motion for summary judgment.

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MBIC/Hanover 2080–81 is a
portion of a July 30, 2021
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile regarding the
underlying claim. It is
protected work product.
MBIC/Hanover 2100 contains
a May 6, 2021 claim note
reflecting the mental
impressions and analysis of
adjuster Donna Normile
regarding the underlying
claim. It is protected work
product.
MBIC/Hanover 2136 contains
a September 17, 2020 claim
note reflecting the mental
impressions and analysis of
adjuster Donna Normile
regarding the underlying
claim. It is protected work
product. The note also
contains descriptions of
communications between Ms.
Normile and assigned defense
counsel that are protected by
the attorney-client privilege.
MBIC/Hanover 2136–37
contains an August 19, 2020
claim note reflecting the
mental impressions and
analysis of Ms. Normile's
supervisor, Joseph Pender,
regarding the underlying
action and related insurance
coverage proceedings. It is
protected work product.

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Valverde Exhibit Z (cont'd)

Collected excerpts from
Plaintiffs' claim file for the
underlying action

MBIC/Hanover 2138–41
contains a series of claim notes
dated August 14 to 19, 2020
reflecting the mental
impressions and analysis of
adjuster Donna Normile
regarding the underlying
action. It is protected work
product. The notes also reflect
communications with defense
counsel that are protected by
the attorney-client privilege at
MBIC/Hanover 2138–39.
MBIC/Hanover 2171–73
consists of a June 2, 2020
e-mail/claim note containing
the mental impressions and
analysis of adjuster Donna
Normile regarding the
underlying action and related
insurance coverage
proceedings. It is protected
work product.
MBIC/Hanover 2195 contains
a February 5, 2020 claim note
reflecting the mental
impressions and analysis of
supervisor Joseph Pender
regarding the underlying
claim. It also contains a
description of communications
with assigned defense counsel
(Sim Shapiro, Esq.) that are
protected by the attorneyclient privilege.

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Valverde Exhibit Z (cont'd)

Collected excerpts from
Plaintiffs' claim file for the
underlying action

MBIC/Hanover 2198–99
contains a portion of a
February 5, 2020 claim note
reflecting the mental
impressions and analysis of
supervisor Joseph Pender
regarding the underlying claim
and related coverage
proceedings. It also reflects
some communications with
assigned defense counsel (Sim
Shapiro, Esq.) that are
protected by the attorneyclient privilege.
MBIC/Hanover 2237 contains
an October 8, 2019 claim note
reflecting communications
with assigned defense counsel.
It is protected work product
and subject to the attorneyclient privilege.
MBIC/Hanover 2357 contains
a March 21, 2017 claim note
reflecting communications
with assigned defense counsel.
It is protected work product
and subject to the attorneyclient privilege.
MBIC/Hanover 2357–58
contains a March 7, 2017
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile regarding the
underlying claim. It is
protected work product.

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Valverde Exhibit Z (cont'd)

Collected excerpts from
Plaintiffs' claim file for the
underlying action

MBIC/Hanover 2358 contains
a February 18, 2017 claim
note reflecting the mental
impressions and analysis of
adjuster Donna Normile
regarding the underlying
claim. It is protected work
product.
MBIC/Hanover 2358 contains
a February 17, 2017 claim
note reflecting the mental
impressions and analysis of
adjuster Donna Normile
regarding the underlying
claim. It is protected work
product.
MBIC/Hanover 2358–62
contains a February 3, 2017
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile regarding the
underlying claim. It is
protected work product.
MBIC/Hanover 2364–66
contains portions of a
November 21, 2016 claim note
reflecting the mental
impressions and analysis of
adjuster Donna Normile
regarding the underlying
claim. It is protected work
product.

Case 1:21-cv-09184-CM-RWL

Document 178

Filed 09/16/24

Page 21 of 25

Hon. Colleen McMahon, U.S.D.J.
September 16, 2024
Page 21

Valverde Exhibit Z (cont'd)

Collected excerpts from
Plaintiffs' claim file for the
underlying action

MBIC/Hanover 2367 contains
a November 16, 2016 claim
note reflecting the mental
impressions and analysis of
supervisor Joseph Pender
regarding the underlying
claim. It is protected work
product.
MBIC/Hanover 2367 contains
a November 9, 2016 claim
note reflecting the mental
impressions and analysis of
supervisor Joseph Pender
regarding the underlying
claim. It is protected work
product.
MBIC/Hanover 2369–70
contains a November 7, 2016
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile and communications
between Ms. Normile and the
insured. It is protected work
product.
MBIC/Hanover 2372–75
contains a September 7, 2016
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile and communications
between Ms. Normile and the
insured. It is protected work
product.

Case 1:21-cv-09184-CM-RWL

Document 178

Filed 09/16/24

Page 22 of 25

Hon. Colleen McMahon, U.S.D.J.
September 16, 2024
Page 22

Valverde Exhibit Z (cont'd)

Collected excerpts from
Plaintiffs' claim file for the
underlying action

MBIC/Hanover 2375 contains
an August 31, 2016 claim note
reflecting the mental
impressions and analysis of
supervisor Joseph Pender and
communications between
MBIC/Hanover and the
insured. It is protected work
product.
MBIC/Hanover 2376–78
contains an August 27, 2016
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile and communications
between Ms. Normile and the
insured. It is protected work
product.
MBIC/Hanover 2378–81
contains an August 19, 2016
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile. It is protected work
product.
MBIC/Hanover 2382–83
contains an August 19, 2016
claim note reflecting the
mental impressions and
analysis of adjuster Donna
Normile. It is protected work
product.

Case 1:21-cv-09184-CM-RWL

Document 178

Filed 09/16/24

Page 23 of 25

Hon. Colleen McMahon, U.S.D.J.
September 16, 2024
Page 23

Valverde Exhibit EE

January 29, 2024 deposition
of Donna Normile

Plaintiffs urge the Court to
sustain the redactions made by
Seneca in its public filing.
The redacted portions concern
discussion of claim notes that
reflect mental impressions,
analysis, and at times
communications with defense
counsel and are therefore
protected work product and
covered by the attorney-client
privilege.

Valverde Exhibit FF

January 23, 2024 deposition
of Philip Pancoast

Plaintiffs urge the Court to
sustain the redactions made by
Seneca in its public filing.
The redacted portions, which
are voluminous, concern
discussion of claim notes that
reflect mental impressions,
analysis, and at times
communications with defense
counsel and are therefore
protected work product and
covered by the attorney-client
privilege.

Valverde Exhibit II

December 19, 2023
deposition of Joseph Pender

Plaintiffs urge the Court to
sustain the redactions made by
Seneca in its public filing.
The redacted portions, which
are voluminous, concern
discussion of claim notes that
reflect mental impressions,
analysis, and at times
communications with defense
counsel and are therefore
protected work product and
covered by the attorney-client
privilege.

Case 1:21-cv-09184-CM-RWL

Document 178

Filed 09/16/24

Page 24 of 25

Hon. Colleen McMahon, U.S.D.J.
September 16, 2024
Page 24

Seneca SOMF ¶ 36
Valverde Dec. ¶ 79

Description of
communications between
defense counsel (James
Sawicki, Esq.) and David
Weiss.

This communication is
protected by the attorneyclient privilege and should be
redacted.

Seneca SOMF ¶ 41
Valverde Dec. ¶ 84

Description of the mental
impressions and analysis of
defense counsel (James
Sawicki, Esq.)

The mental impressions and
analysis of defense counsel are
protected work product.

Seneca SOMF ¶ 43
Valverde Dec. ¶¶ 86, 89, 92,
104

Description of the mental
impressions and analysis of
MBIC/Hanover
representatives

The mental impressions and
analysis of MBIC/Hanover
representatives regarding the
underlying claim are protected
work product.

Seneca SOMF ¶ 69
Valverde Dec. ¶¶ 93, 94, 105

Description of the mental
impressions and analysis of
MBIC/Hanover
representatives regarding
underlying settlement
negotiations

The mental impressions and
analysis of MBIC/Hanover
representatives regarding the
underlying claim are protected
work product.

Valverde Dec. ¶ 85

Description of the mental
impressions and analysis of
MBIC/Hanover
representatives regarding
underlying settlement
negotiations

The mental impressions and
analysis of MBIC/Hanover
representatives regarding the
underlying claim are protected
work product.

Valverde Dec. ¶ 87

Description of
communication between
MBIC/Hanover and defense
counsel regarding underlying
action

This communication is
protected by the attorneyclient privilege.

Valverde Dec. ¶ 93

Description of
communication between
MBIC/Hanover and defense
counsel regarding settlement
negotiations in the underlying
action

This communication is
protected by the attorneyclient privilege.

Case 1:21-cv-09184-CM-RWL

Document 178

Filed 09/16/24

Page 25 of 25

Hon. Colleen McMahon, U.S.D.J.
September 16, 2024
Page 25

Valverde Dec. ¶ 94

Description of the mental
impressions and analysis of
MBIC/Hanover
representatives regarding
underlying settlement
negotiations

The mental impressions and
analysis of MBIC/Hanover
representatives regarding the
underlying claim are protected
work product.

Valverde Dec. ¶ 95

Description of
communications between
defense counsel and
MBIC/Hanover

These communications are
protected by the attorneyclient privilege.

Valverde Dec. ¶ 99

Description of the mental
impressions and analysis of
adjuster Donna Normile

The mental impressions and
analysis of MBIC/Hanover
representatives regarding the
underlying claim are protected
work product.

Unredacted copies of the aforementioned documents were provided to the Court by counsel
on September 5, 2024. Should the Court require anything further to assess these requests to seal
and redact, please do not hesitate to have a member of chambers contact our office.
We thank the Court for its time and consideration of this matter.
Respectfully submitted,
/s/ Jared J. Limbach
JARED J. LIMBACH
cc:

All Counsel of Record (via ECF)