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Cellco Partnership v. Certain Underwriters at Lloyd's London

May 11, 2006

CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF,
v.
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, CERTAIN SUBSCRIBING LONDON MARKET INSURANCE COMPANIES AND JOHN DOE INSURANCE COMPANIES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Hughes, U.S.M.J.

MEMORANDUM OPINION

This matter comes before the Court upon Motion by Plaintiff Cellco Partnership d/b/a Verizon Wireless ("Plaintiff") to compel production of documents, [Docket Entry #11], returnable April 17, 2006, and upon Motion by Defendants Certain Underwriters at Lloyd's London and Certain Subscribing London Market Insurance Companies ("Defendants"), [Docket Entry #12], also returnable April 17, 2006. The Court reviewed the written submissions of the parties, conducted oral argument on April 11, 2006 and reviewed the subject documents in camera. For the reasons set forth below, Plaintiff's Motion to Compel production of documents is denied and Defendants' Motion to Compel production of documents is granted in part and denied in part.

I. BACKGROUND AND PROCEDURAL HISTORY

In July 2003, Defendants issued an insurance policy to Plaintiff with an inception date of July 1, 2003, expiring July 1, 2004. Aon became Plaintiff's insurance broker soon thereafter. On April 13, 2004, Aon provided notice to Defendants that Plaintiff was making a claim based on one of its former employee's misappropriation of and theft of its PIN numbers and calling cards, with a calculated loss by Plaintiff of $21,266,185. In July 2004, Defendants informed Plaintiff that it was declining coverage under Plaintiff's Commercial Crime Policy. In September 2004, Defendants reiterated their denial of Plaintiff's claim.

In response, Plaintiff filed a declaratory action and breach of contract action in New Jersey State Court, arguing that its claims were wrongfully denied. The action was removed to this Court on diversity grounds. Subsequently, on or about September 28, 2005, Defendants served discovery requests upon Plaintiff. Plaintiff provided responses to the document requests and also provided a privilege log. Pursuant to FED. R. CIV. P. 26(b)(5), Plaintiff withheld a number of documents prepared by, transmitted to, or that summarize communications with brokers at Aon, claiming the documents are protected by attorney-client and/or work-product privilege. After a number of conferences between the parties, fifteen (15) documents remain in dispute.

Plaintiff also served its discovery requests upon Defendants. In so doing, Plaintiff sought all documents related to the investigation and handling of [Plaintiff's] claim. In response, Defendants withheld a number of documents claiming attorney-client and work-product privileges. Plaintiff claims these documents were improperly withheld; arguing that Defendants obtained outside counsel, Wilson, Elser, Moskowitz, Edelman & Dicker LLP ("Wilson Elser") to investigate and handle Plaintiff's claim. Thus, anything related to this investigation, Plaintiff argues, was done as routine and ordinary business practices, and thus falls outside the purview of protected communications under the attorney-client or work-product privilege.

II. DISCUSSION

A. Attorney-Client Privilege

Communications between an attorney and client are protected by the attorney-client privilege. The purpose of this privilege is to promote frank discussions between a client and his/her attorney to allow the attorney to best represent the client. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed. 2d 39 (1976).

The privilege provides that: communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has privilege to (a) to refuse to disclose any such communication, and (b) prevent his lawyer from disclosing it, and (c) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness

(i) in the course of its transmittal between the client and the lawyer, or

(ii) in a manner not reasonably to be anticipated, or

(iii) as a result of a breach of the lawyer-client relationship, or

(iv) in the course of a recognized confidential or privileged communications between the client and such ...


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