Challenges After TransCanada and Cedell Navigating Discovery - - PowerPoint PPT Presentation

Insurance Claims: Privilege and Work Product Challenges After TransCanada and Cedell

Navigating Discovery Requests and the Applicability of the Privilege in Insurance Litigation

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Presenting a live 90-minute webinar with interactive Q&A Laura A. Foggan, Partner, Wiley Rein, Washington, D.C. Seth D. Lamden, Partner, Neal Gerber & Eisenberg, Chicago

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Insurance Claims: Privilege and Work Product Challenges After TransCanada and Cedell

Strafford– November 12, 2014

Laura A. Foggan Wiley Rein LLP 1776 K Street NW Washington, DC 20006 (202) 719-3382 lfoggan@wileyrein.com Seth D. Lamden Neal, Gerber & Eisenberg LLP Two N. LaSalle St. Chicago, IL 60602 (312) 269-8052 slamden@ngelaw.com

Summary

• I. Overview of Attorney-Client Privilege and Work Product Doctrine in Coverage

Disputes

• II. Nat’l Union Fire Ins. Co. of Pittsburgh v. Transcanada Energy USA, 2014 NY

Slip Op 05606 (App. Div. July 31, 2014)

• III. Cedell v. Farmers Ins. Exchange, 295 P.3d 239 (Wash. 2013)
• IV. Protecting the Privilege
• V. Additional Discovery Issues In Coverage Litigation: Representative Cases

6

The Basics: Attorney Client Privilege and Work Product Doctrine

7

Attorney-Client Privilege

The attorney-client privilege shields from discovery a communication between client and counsel that: (1) was intended to be and was in fact kept confidential; and (2) was made for the purpose of obtaining or providing legal advice. “[T]he mere presence of a lawyer’s name at the top or bottom of a document is not the bell that causes the dog Privilege to salivate.” Nedlog Co. v. ARA Services, Inc., 131 F.R.D. 116, 117 (N.D. Ill. 1989).

8

Attorney-Client Privilege

Choice of law analysis often focuses on the state with the “most significant relationship with the communication.” Restatement (Second) of Conflict of Laws § 139.. Privilege is substantive, not procedural. Controlled by state law in federal diversity cases. SeeFRE 501.

9

Attorney-client relationship? Is attorney providing legal advice or business advice? Waiver? Privilege must always be evaluated and defended on a document-by- document basis. General rules provide an analytical framework, but not necessarily the answer.

Attorney-Client Privilege: Key Issues In Coverage Litigation

10

Communications between defense counsel and insured. Communications between defense counsel and insurer. Communications between insured and insurer. Communications between insurer and outside coverage counsel. Communications between adjuster and insurer’s in-house counsel. Communications among co-insurers. Communications between insurer and reinsurer. Communications involving insurance broker.

Number of Attorneys In Coverage Dispute Can Complicate Privilege Determination

11

Relationship between insurer, insured and defense counsel can present complex privilege issues. “Perhaps this Court’s patience, after thirty-six years on the federal bench, is wearing thin or, perhaps, this case is a perfect illustration

• f the flaws . . . in the current state of the legal practice as to

insurance coverage disputes and the determination of questions of attorney-client privilege or work-product immunity in these ‘unique tripartite relationships’ . . . . ” Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 632 n. 322 (S.D. Fla. 2013).

Attorney-Client Privilege: Who Is Defense Counsel’s Client?

12

Work-Product Doctrine

The attorney work-product doctrine generally shields from discovery documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. The determination of whether a document has been prepared “in anticipation of litigation” turns on two issues: (1) whether the document was prepared “because of” a party's subjective anticipation of litigation rather than an ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable.

13

Work-Product Doctrine

Unlike the attorney-client privilege, which is derived from substantive law, the work product doctrine is based on the procedural law of the court in which the lawsuit is pending. Federal work product doctrine encompasses all work performed by an attorney or his agent in anticipation of litigation. F.R.C.P.26(b)(3) In some states, work product protection is narrower. For example, in Illinois, only “opinion work-product”--matter which discloses the theories, mental impressions or litigation plans of a party's attorney-- is protected from discovery. (See Ill. Sup. Ct. R. 201(b)(2))

14

Was material in insurer claim file prepared in anticipation of litigation? Material prepared as part of ordinary business not work product. Issue is “particularly difficult” because “‘[t]he nature of the insurance business requires an investigation prior to the determination of the insured's claim.’” Westchester Surplus Lines Ins. Co. v. Clancy & Theys

• Constr. Co., 2013 U.S. Dist. LEXIS 162935, at *10-*13 (E.D.N.C. Nov.

14, 2013) (citing cases).

Work-Product Doctrine: Key Issues In Coverage Litigation

15

Insurer commences internal arson investigation?

Insurer sends reservation of rights letter?

Insurer sends coverage denial letter?

Insurer files declaratory judgment action?

When Does Insurance Business End?

Requires fact-specific analysis, but many courts hold that

• rdinary insurance business ends and litigation may be

anticipated after insurer informs policyholder that claim isn’t covered.

16

Putting the Issues In Context

17

Why Do Policyholders Seek Production of Insurance Claim Files?

18

Insurer's claims file is usually considered to be the "crown jewel" of discovery by the policyholder, particularly in bad faith cases.

Why Do Insurers Typically Resist Production of Insurance Claim Files?

19

Insurer's claims file is usually considered to be the "crown jewel" of discovery by the policyholder, particularly in bad faith cases.

Insured requests coverage for settlement of underlying class action alleging claims of negligence and fraud. Insurer retains law firm to evaluate whether underlying settlement is covered. After extensive investigation, firm recommends that insurer should deny coverage based on fraud exclusion. In subsequent coverage litigation, insured seeks production of all

• f the law firm’s research files, internal communications and

memoranda, and communications with insurer.

Why Insurers and Their Attorneys Must Consider Privilege Issues at Beginning of Claim Investigation: Case Study

Country Life Ins. Co. v. St. Paul Surplus Lines Ins. Co., 2005 U.S. Dist. Lexis 39691 (C.D. Ill. Jan. 31, 2005).

20

Insurer withholds attorney files based on the attorney work-product doctrine. Court: Insurer must produce all documents created by its attorney before insurer notified the insured that it was denying coverage. Why? Because “[d]ocuments created before the insured is notified simply reflect the business that insurance companies do, namely investigating facts and determining whether those facts fall within policy coverage.”

Country Life Ins. Co. v. St. Paul Surplus Lines Ins. Co., 2005 U.S. Dist. Lexis 39691 (C.D. Ill. Jan. 31, 2005).

Why Insurers and Their Attorneys Must Consider Privilege Issues at Beginning of Claim Investigation: Case Study

21

Attorney files contained a detailed memorandum indicating that there was only weak factual and legal support for denial of coverage based on fraud exclusion, and internal attorney emails showed that the firm focused on trying to find ways to deny coverage. Insurer’s coverage counsel is deposed. Expert opines that outside counsel was acting as an adjuster and conducted a biased investigation, which was bad faith. Case settles before trial.

Country Life Ins. Co. v. St. Paul Surplus Lines Ins. Co., 2005 U.S. Dist. Lexis 39691 (C.D. Ill. Jan. 31, 2005).

Why Insurers and Their Attorneys Must Consider Privilege Issues at Beginning of Claim Investigation: Case Study

22

TransCanada and Cedell

23

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. TransCanada Energy USA, Inc.,

• Nos. M-1354, M-1384, M-1471 (N.Y. App. Div. July 31, 2014)

This case concerned first-party coverage for property damage and business interruption expenses arising from the breakdown of a steam turbine power generator. Several insurers retained coverage counsel, who investigated the claim and provided advice as to whether the insurers should pay or deny the claim. This was done by a single firm for certain market insurers, who each held a percentage of risk, but were third-parties to one-another. In coverage litigation that followed, the policyholders sought to discover documents created by the attorneys. The party claiming the privilege bore the burden of proof in establishing the documents were protected.

TransCanada

24

The court found that the insurers had not met their burden of demonstrating privilege as to the majority of the documents, finding that the insurers’ counsel were primarily engaged in claims handling, an ordinary business activity. These documents were not work product and trial preparation materials or attorney client communications. For work product and trial preparation materials, the trial court had stated that an insurer cannot claim protection until it makes a firm decision to deny coverage. For attorney-client privilege, there is no tie to contemplation of

• litigation. The document must be a confidential communication

between and attorney and client, made in the context of legal advice.

TransCanada

25

There is no privilege for documents created in the

• rdinary course of business. Insurance companies

investigate claims and decide whether to accept or deny coverage as part of their regular business activities. There is no privilege for attorneys performing such work. Determining whether documents fall within the limited attorney-client privilege is a factual determination and requires in camera review of the documents.

TransCanada

26

Common interest privilege is not a separate privilege, but an exception to the usual rule that disclosure to a third-party waives protection The trial court held that, in New York, any common interest privilege is limited to where parties reasonably anticipated litigation and – for insurers – it held this meant after a denial of coverage. Here, the trial court held that, where market insurers shared documents from counsel prior to the determination to deny coverage, there was no common interest privilege and the attorney- client protection was waived. No joint defense or similar agreement was provided to explain terms and conditions of joint representation.

TransCanada

27

The original decision of the intermediate appellate court affirming the trial court was issued on February 25, 2014. After the insurers moved for reconsideration, the intermediate appellate court issued a new opinion dated July 31, 2014.

TransCanada

28

The second opinion adds a discussion of the trial court’s in camera review and a statement that “claims handling” is an ordinary business activity for an insurance company. Importantly, the second opinion does not reach the common interest exception to the attorney-client privilege (or the determination that it

• nly can attach after a denial of coverage) because the court

determined that the privilege did not attach in the first instance.

The difference between the two Appellate Division decisions is relatively minor:

TransCanada

29

Postscript: The insurers in TransCanada are in the process

• f seeking further appellate review.

TransCanada

30

Cedell v. Farmers Ins.

Cedell v. Farmers Ins. Co. of Wash., 295 P.3d 239 (Wash. 2013)

In this case, a policyholder’s house burned down, and he sought first-party coverage under his homeowner’s policy. The policyholder’s girlfriend was at the home at the time of the fire, but he was not. The fire department concluded that the fire was “likely” accidental and the insurer’s fire investigator found no evidence of arson and agreed a candle was a possible or even probable cause of the fire. One of the insurer’s adjusters, as well as one of its independent estimators, provided an estimate of the damage to the house and property.

31

Cedell v. Farmers Ins.

Cedell v. Farmers Ins. Co. of Wash., 295 P.3d 239 (Wash. 2013)

The insurer also hired an attorney to assist in making a coverage determination. The attorney conducted an examination under oath of the policyholder and his girlfriend. Roughly eight months after the fire, the attorney sent the policyholder a letter: (1) stating that the insurer may deny coverage based on a delay in reporting and based on the girlfriend’s inconsistent statements about the fire; and (2) extending a one-time offer to settle for approximately 1/3

• f the estimated loss, which would be held open for ten days.

32

The policyholder unsuccessfully attempted to contact the attorney during the 10-day period. Claiming that Farmers ignored his repeated calls, and that he was forced to retain counsel to elicit any action on the claim, the policyholder sued the insurer, alleging that it acted in bad faith. In discovery, the parties disputed whether and the extent to which materials in the claim file relating to the attorney’s investigation and advice would be discoverable.

Cedell v. Farmers Ins.

33

When an insured asserts bad faith against his insurer, unique considerations arise. “A first party bad faith claim arises from the fact that the insurer has a quasi-fiduciary duty to act in good faith toward its insured.” “Implicit in an insurance company’s handling of [a] claim is litigation or the threat of litigation that involves the advice of

• counsel. To permit a blanket privilege in insurance bad faith

claims because of the participation of lawyers hired or employed by insurers would unreasonably obstruct discovery

• f meritorious claims and conceal unwarranted practices.”

Cedell v. Farmers Ins.

34

“We start from the presumption that there is no attorney- client privilege relevant between the insured and the insurer in the claims adjusting process, and that the attorney-client and work product privileges are generally not relevant.” “[T]he insurer may overcome the presumption … by showing its attorney was not engaged in the quasi-fiduciary tasks of investigating and evaluating or processing the claim, but instead in providing the insurer with counsel as to its own potential liability; for example, whether or not coverage exists under the law.”

Cedell v. Farmers Ins.

35

“Upon such a showing, the insurance company is entitled to an in camera review of the claims file, and to the redaction of communications from counsel that reflected the mental impressions of the attorney to the insurance company, unless those mental impressions are directly at issue in its quasi- fiduciary responsibilities to its insured.” “If the trial judge finds the attorney-client privilege applies, then the court should next address any claims the insured may have to pierce the attorney-client privilege.”

Cedell v. Farmers Ins.

36

In particular, in the bad faith context, the insured may assert the civil fraud exception. If the civil fraud exception is asserted, then upon a showing of a reasonable belief that an act of bad faith tantamount to a civil fraud has occurred, the court will conduct an in camera review. In the in camera review, upon the finding that there is a factual foundation to permit the claim of bad faith to proceed, the attorney client privilege will be waived by the civil fraud exception. Note: There is an exception for first-party UIM claims, where there is no presumption of no privilege because the insurer is entitled to stand in the shoes of the tortfeasor to defend, and is entitled to counsel’s advice with respect to such defenses.

Cedell v. Farmers Ins.

37

As applied to the facts here, the court ruled that the insurer hired the attorney “to do more than give legal opinions.” “While [the attorney] may have advised [the insurer] as to the law and strategy, he also performed the functions of investigating, evaluating, negotiating, and processing the claim. These functions and prompt and responsive communications with the insured are among the activities which an insurer owes a quasi-fiduciary duty to [the insured].” And, to the extent attorney-client privilege applied to some documents where the attorney was not acting as a quasi-fiduciary, it was unclear whether the trial court followed the steps outlined, so the matter was remanded for further proceedings consistent with the Washington high court ruling.

38

Cedell v. Farmers Ins.

Post-Cedell

Has been applied to third party bad faith claims. Carolina Cas. Ins. Co. v. Omeros Corp., No. C12-287RAJ, 2013 WL 1561963 (W.D. Wash. Apr. 12, 2013). “Several district courts … have interpreted Cedell as broadening the scope of discoverable information in insurance disputes.” Everest Indem. Ins. Co. v. QBE Ins. Corp., 980 F. Supp. 2d 1273, 1279 (W.D. Wash. 2013) (citing cases). At least one court outside of Washington has applied Cedell. Stewart Title Guar. Co. v. Credit Suisse, 2013 WL 1385264 (D. Idaho April 2, 2013).

39

Post-Cedell

But Cedell does not apply to the work product doctrine, which is a matter of federal law. And, Cedell’s mandate for an in camera review of attorney-client has been viewed as “procedural.” Thus, the determination about whether to conduct an in camera review rests “in the sound discretion of the court.” MKB Constructors v. Am. Zurich Ins. Co., No. C13-0611JLR, 2014 WL 2526901 (W.D. Wash. May 27, 2014).

40

The Court considered whether attorney-client privilege prevented disclosure of: (1) a commercial liability coverage opinion letter provided to Montpelier prior to the claim by the Corricks; (2) coverage opinion letters provided to Montpelier finding coverage for an alleged claim; and (3) copies of any seminar or training materials prepared for any insurer or industry group related to coverage interpretation or extra-contractual liability.

State of West Virginia ex rel. Montpelier US Ins. Co. et al. v. Honorable Louis H. Bloom, Judge of the Circuit Court of Kanawha County, West Virginia et al., No. 13-1172 (W. Va.

• Apr. 10, 2014).

TransCanada and Cedell - Outliers?

41

“[A]n insurance company’s retention of legal counsel to interpret the policy, investigate the details surrounding the damage, and to determine whether the insurance company is bound for all or some

• f the damage, is a classic example of a client seeking legal advice

from an attorney.” The insured contended that, because the insurers disclosed the recommendation of the coverage opinion letters to the insureds, the attorney-client privilege was lost as to the actual coverage opinion

• letters. The court found no case that held that the attorney-client

privilege does not apply to a coverage opinion letter when an insurer communicates the gist of the recommendation contained in the letter to the insured.

State of West Virginia ex rel. Montpelier US Ins. Co.

TransCanada and Cedell - Outliers?

42

The policyholder also sought disclosure of all seminar or training materials the attorneys prepared for any insurer or industry group. The court held: “We have reviewed all of the documents submitted under this discovery request. All of the documents reflect CRW’s legal

• pinion on specific topics. The documents explain legal concepts and

procedures and specific policy issues. . . these documents are protected by the attorney-client privilege.” Note: The West Virginia high court did not address the crime-fraud issue because it was not relied upon by the discovery commissioner

• r circuit court, nor was it presented below.

State of West Virginia ex rel. Montpelier US Ins. Co.

TransCanada and Cedell - Outliers?

43

Finally, the court considered whether the attorney’s contract with Montpelier and its billing statements for the work on the coverage opinion letter were protected from disclosure by the work product doctrine. The court said they were not. The retention agreement was a general agreement about how legal work would be assigned, how conflict of interests would be resolved, how billing would occur, counsel’s obligation to obtain professional liability insurance, how disputes between the parties would be resolved, and a few other miscellaneous matters. The two billing statements were typical non-protected billing statements that provided very general descriptions of the work, the initials of the attorney, and the time it took to perform each task (the actual amount charged was ordered redacted).

State of West Virginia ex rel. Montpelier US Ins. Co.

TransCanada and Cedell - Outliers?

44

Protecting the Privilege When Investigating an Insurance Claim: Attorney Investigations and Coverage Analysis

45

Evaluate governing law and, in litigation, the applicable forum (state vs. federal court) The less that counsel’s conduct is quasi-fiduciary, the more it is likely to be privileged. Consider “splitting the file.” Use separate communications about factual investigation versus legal advice. Specify basis for engagement of counsel in retention letter.

Investigations and Coverage Determination

46

Label communications privileged, when appropriate. Be careful about what you put in writing. Consider use of written joint defense and non-waiver agreements Particularly, in cases of in camera review, consider use of a discovery master. Evaluate possible bifurcation of bad faith claims.

Investigations and Coverage Determination

47

Protecting the Privilege When Investigating Insurance Claims: Sharing Defense-Related Information Between Insurer and Insured

48

Assume No Insurer-Insured Privilege

Although some courts discuss a de facto insurer-insured privilege, relationship between insurer and insured is not an independent source of privilege. Correct analysis requires determination of whether insurer and insured are deemed to be co-clients of defense counsel and/or whether insurer and insured share a common legal interest.

49

Common Interest Between Insured and Insurer Following Coverage Denial?

No: Petco Animal Supplies Stores, Inc. v. Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 70748 (D. Minn. June 10, 2011) (agreeing with trial court that “there could be no common interest in defeating or minimizing claims against the insured where the insurer has refused to cover the insured's claims . . . .”) Yes: Waste Mgmt., Inc. v. Int’l Surplus Lines Ins. Co., 144 Ill. 2d 178 (1991) (minority rule)

50

Practical Guidance for Sharing Defense-Related Information Between Insurer and Insured

Avoid communicating sensitive and privileged material in writing. Limit the dissemination of privileged communications only to persons directly involved with the claim. Mark all privileged communications as an "attorney-client communication" and instruct all recipients to maintain the communication as confidential. Avoid discussing coverage issues and liability issues in the same communications. Use confidentiality agreements and common interest agreements. Ask court for protective order in coverage litigation.

51

Additional Discovery Issues In Coverage Litigation: Representative Cases

52

53

Often depends on how and when reserves are calculated

• Isilon Sys., Inc. v. Twin City Fire Ins. Co., 2012 U.S. Dist. LEXIS 18626 (W. D.
• Wash. February 15, 2012)
• Spirco Envtl., Inc. v. Am. Int’l Specialty Lines Ins. Co., 2006 WL 2521618 (E.D.
• Mo. Aug. 30, 2006)
• Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 U.S. Dist. LEXIS 466 (S.D.N.Y.
• Jan. 11, 2005)
• Nat’l Union Fire Ins. Co. v. Cont’l Illinois Group, 1988 U.S. Dist. LEXIS 7826

(N.D. Ill. July 21, 1988)

Are Insurer Reserves Attorney Work Product?

54

Usually depends on common interest doctrine

• Progressive Cas. Ins. Co. v. Fed. Deposit Ins. Corp., 2014 WL 4168477 (N.D.

Iowa Aug. 22, 2014)

• Nat’l Union Fire Ins. Co. of Pittsburg, PA. v. Mead Johnson & Co., et al., 2011

U.S. Dist. LEXIS 122149 (S.D. Ind. October 21, 2011)

• ARTRA 524(g) Asbestos Trust v. Transp. Ins. Co., 2011 U.S. Dist. LEXIS 110272

(N.D. Ill. September 29, 2011)

• Emp’r Reins. Corp. v. Laurier Indem. Co., 2006 WL 532113 (M.D. Fla. Mar. 3,

2006)

• Fireman’s Fund Ins. Co., et al. v. Great Am. Ins. Co. of N.Y., et al., 2012 U.S.
• Dist. LEXIS 92701 (S.D.N.Y. July 3, 2012)
• Regence Group, et al. v. TIG Specialty Ins. Group, 2010 U.S. Dist. LEXIS 9840

(D. Or. February 4, 2010)

Privilege Waiver If Insurer Forwards Privileged Communication to Its Reinsurer?

55

Usually depends on jurisdiction’s “at issue” doctrine.

• Cudd Pressure Control, Inc. v. New Hampshire Ins. Co., 297 F.R.D. 495 (W.D.
• Ok. 2014)
• Empire West Title Agency LLC, v. Talamante ex rel. Cnty. of Maricopa , 323

P.3d 1148 (Ariz. 2014).

• Hurley v. State Farm Mut. Auto. Ins. Co., 2013 U.S. Dist. LEXIS 12558 (D.S.D.
• Jan. 30, 2013)
• City of Glendale v. Nat’l Union Fire Ins. Co., 2013 U.S. Dist. LEXIS 60711 (D.
• Ariz. Apr. 29, 2013)
• Tackett v. State Farm, 653 A.2d 254 (Del. 1995)
• Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994)

Privilege Waiver If Insurer Asserts “Advice of Counsel” Defense to Bad Faith Claim?

56

Often turns on issues of agency and whether the communication was in furtherance of a legal function

• Progressive Cas. Ins. Co. v. Fed. Deposit Ins. Corp., 2014 WL 4168477 (N.D.

Iowa Aug. 22, 2014)

• Woodruff v. Am. Family Mut. Ins. Co., 291 F.R.D. 239 (S.D. Ind. 2013)
• In re Tetra Technologies, Inc., 2010 U.S. Dist. LEXIS 33012 (S.D. Tex. April 5,

2010)

• Cellco Partnership d/b/a Verizon Wireless v. Certain Underwriters at Lloyd’s,

London, et al., 2006 WL 1320067 (D.N.J. 2006)

• Amtel Corp v. St. Paul Fire & Marine Ins. Co, 409 F. Supp. 2d 1180 (N.D Cal.

2005)

• Cigna Ins. Co. v. Cooper Tires & Rubber, Inc., 2001 U.S. Dist. LEXIS 7546 (N.D.

Ohio May 24, 2001).

Privilege Waiver If Insured Forwards Privileged Information to Broker?

Insurance Claims: Privilege and Work Product Challenges After TransCanada and Cedell

Strafford– November 12, 2014

Laura A. Foggan Wiley Rein LLP 1776 K Street NW Washington, DC 20006 (202) 719-3382 lfoggan@wileyrein.com Seth D. Lamden Neal, Gerber & Eisenberg LLP Two N. LaSalle St. Chicago, IL 60602 (312) 269-8052 slamden@ngelaw.com