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Employers Insurance Company of Wausau v. Skinner

September 17, 2008


The opinion of the court was delivered by: A. Kathleen Tomlinson U.S. Magistrate Judge




Before the Court is a motion by Plaintiff Employers Insurance Company of Wausau seeking a protective order that (1) commands Defendants Paul A. Skinner and Paul J. Skinner to return or destroy all copies of an inadvertently-produced email which Plaintiff claims is protected by the attorney-client privilege, and (2) precludes Defendants from using this document at trial or in any other way [DE 22]. I have reviewed Plaintiff's motion, the affirmation of Defendants' counsel filed in opposition to the motion [DE 25], and Plaintiff's reply [DE 26]. In addition, I heard extensive oral argument from the parties during a May 16, 2008 hearing. I have also reviewed the document at issue in camera. For the reasons set forth below, Plaintiff's motion for a protective order is GRANTED.*fn1


In August 2007, the parties entered into a Confidentiality Agreement which provided, in part as follows:

The inadvertent production of any document or other information in the Action shall be without prejudice to any claim that such material is protected under the attorney-client privilege or is protected from discovery under the attorney work product doctrine and no party shall be held to have waived any rights by such inadvertent production.

Affidavit of Robert Kenney ("Kenney Aff."), Ex. A at 5.

On November 5, 2007, Plaintiff served Defendants with approximately 396 pages of documents in response to Defendants' document requests. Id. at ¶ 4. Plaintiff's counsel asserts that prior to production, an associate from counsel's law firm reviewed the documents and separated them into three piles. These three piles were delineated as materials (1) responsive, (2) privileged, and (3) to be reviewed by a partner. The associate pulled 16 documents (including the document that is the subject of this motion) from the production on the grounds of attorney-client privilege. A law firm partner completed a second review of the documents with the associate. Id. at ¶ 3. When Plaintiff served the November 5, 2007 document production upon Defendants , its counsel included a cover letter stating that "[t]he production of this file in no way waives the attorney-client privilege or work product doctrine as it pertains to any documents inadvertently included therein. Id., Ex. C. At some point, Plaintiff's counsel "prepared a privilege log that identified all 16 documents." Certif. of Gary N. Smith ("Smith Certif.") at ¶ 4. It is unclear from the parties' submissions whether the privilege log was prepared contemporaneously with the document review and November 5 production, or sometime after. Defendants contend that the privilege log was never served upon them until December 28, 2007, almost two months after the document production. Aff'n in Opp'n by Robert J. Gironda ("Gironda Aff'n"), Ex. B.

Plaintiff maintains that it inadvertently included an attorney-client privileged email (the "Email") in its November 5, 2007 document production. During the December 4, 2007 deposition of Martin Jeffers, one of the addressees of the Email, Defendants' counsel marked the Email as an exhibit. Plaintiff's counsel did not object to Defendants' counsel marking the Email during the deposition, but sent a letter to Defendants' counsel the following day requesting the return or destruction of the Email. Id., Ex. F. Counsel exchanged subsequent correspondence in which Plaintiff demanded the return or destruction of the Email on the grounds that it was protected by the attorney-client privilege. Defendants refused to return or destroy the Email on the grounds that Plaintiff's "voluntary exchange of this information through the regular discovery procedures to a third party, voluntarily eliminates the attorney client privilege you have alleged." Id., Ex. G.

On February 26, 2008, Defendants' counsel filed a motion requesting an extension of the discovery deadline and noting, inter alia, that Defendants disputed Plaintiff's pending request for the return or destruction of the Email [DE 13]. Defendants' counsel attached a copy of the Email to his letter motion and posted it on the ECF docket. Counsel did not attempt to file the Email under seal or submit it for an in camera review. On March 20, 2008, Plaintiff filed a motion to seal the Email on the grounds that the parties disputed whether or not the Email was covered by the attorney-client privilege. The Court temporarily granted Plaintiff's motion on April 2, 2008 and sealed the Email pending the outcome of this motion.


Plaintiff contends that the Email is protected by the attorney-client privilege because it contains a request from Plaintiff for a legal opinion from its "coverage counsel." Mem. of Law in Supp. of Pl.'s Mot. for a Protective Order ("Pl. Mem.") at 6. Plaintiff alleges that it is a subsidiary of Liberty Mutual and that Liberty Mutual's Property Division adjusts commercial losses for Plaintiff's claims, including the commercial losses that stemmed from the fire at Plaintiff's facility which forms the basis of this lawsuit. Certification of Scott R. Kipnis ("Kipnis Certif.") at ¶ 2; Reply Aff. of Robert Kenney ("Kenney Reply Aff."), Ex. P at 10, 11. The Email was sent by Raymond Charleston, who worked as Liberty Mutual's Regional Claims Manager at the time of the fire, to Liberty Mutual's coverage counsel, Robert Cossolini, and, according to Plaintiff, the individuals copied on the Email were all employees of Liberty Mutual.*fn2 Id. ¶¶ 5-8. Plaintiff further argues that "the privilege survived when plaintiff provided the e-mail to current counsel for the prosecution of this matter" because "[t]he e-mail pertained to the fire in question and is therefore within the same enterprise as this litigation." Pl. Mem. at 8.

Plaintiff contends that its inadvertent production of the privileged Email to Defendants did not constitute a waiver of the attorney-client privilege because the document production was made pursuant to the terms of the parties' Confidentiality Agreement which specifically provided that the "inadvertent production of a document in discovery does not waive the attorney-client privilege." Id. at 9. Plaintiff maintains that Defendants' refusal to return the Email is based upon their position that Plaintiff waived the privilege by inadvertently producing the Email, but "[t]his is the very argument that defendants have agreed they do not have to make" by signing the Confidentiality Agreement. Id.

According to Plaintiff, the Second Circuit has recognized the validity of confidentiality agreements, similar to the Confidentiality Agreement signed by the parties in this case, which "provide for out-of-court resolution of inadvertent production issues." Id. at 10. Plaintiff further claims that the general rule in the Second Circuit is that "unless the [Court finds that the] production was so reckless that the producing party showed no regard for the privileged document, the [Confidentiality Agreement] protects the document and maintains the privilege." Id. (citing U.S. Fidelity & Guar. Co. v. Braspetro Oil Services Co., No. 97 Civ 6124, 2000 WL 744369, at *4 (S.D.N.Y. June 8, 2000)). Plaintiff argues that because it took numerous precautions before producing the documents on November 5, the disclosure of the Email cannot be considered "reckless." Pl. Mem. at 11.

Even without the protections of the parties' Confidentiality Agreement, Plaintiff argues that its inadvertent production of the Email did not waive the attorney-client privilege. Id. Plaintiff claims that it "took appropriate steps to protect privileged information," including (1) entering into a Confidentiality Agreement, (2) engaging in a multi-tiered review of its documents before production, (3) separating privileged documents from the production, and (4) serving a privilege log upon Defendants. Id.

Finally, Plaintiff asserts that established ethical principles provide that "where it is clear that [a] document [produced in discovery] was not intended for the receiving lawyer, the lawyer should refrain from examining it, notify the sending lawyer, and abide that lawyer's instructions." Id. at 16. Plaintiff contends that, in contravention of these ethical provisions, Defendants did not disclose to Plaintiff that they had received the privileged Email, "surprise[d]" Plaintiff with the Email during Mr. Jeffers's deposition, and then "rather than preserving the document for an in camera review by the Court, the defendants filed it on the Court's publicly accessible ECF system." Id. at 17.

In opposition, Defendants state Plaintiff has failed to establish that the Email is protected by the attorney-client privilege.*fn3 Defendants assert that Plaintiff has not submitted any admissible evidence establishing either that Mr. Cossolini was acting as Plaintiff's counsel when the Email was sent or that the recipients of the Email were employees of or "acting on behalf of" the Plaintiff. Gironda Aff'n at ¶ 6. Defendants contend that the statement in the Kipnis Certification that Plaintiff is a subsidiary of Liberty Mutual "by itself is insufficient to establish that an attorney-client relationship existed . . . [because] mere conclusory assertions by an attorney are not evidence nor are they in admissible form and therefore should be disregarded." Id. at ¶ 7.

Even if the attorney-client privilege did protect the Email, Defendants argue, Plaintiff waived that privilege when it produced the Email to Defendants during discovery. Defendants claim that Plaintiff's conduct, including producing the Email as part of a 396-page document production on November 5, 2007, failing to object at the time that Defendants marked the email as an exhibit during the December 4, 2007 deposition, and failing to label the Email as "privileged" or "confidential," evidences that Plaintiff's counsel "did not take reasonable precautions to prevent such an inadvertent disclosure of the allegedly privileged email." Id. at ¶¶ 10-12. Defendants also assert that "plaintiff's counsel attempted to cover up its careless actions by later drafting and serving a privilege log upon the defendant on December 28, 2007," id. at ¶ 14, and so the after-the-fact service of the privilege log cannot support Plaintiff's claim that it employed reasonable precautions.

Finally, Defendants claim that they have relied upon the contents of the Email in planning their defense in this action. Id. at ΒΆ15. Specifically, Defendants contend that counsel "conducted its December 4, 2007 examination of Mr. Jeffers with the belief that they would be able to use the subject email at trial" and "expended a large amount of time and ...

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