The opinion of the court was delivered by: Arpert, U.S.M.J
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Motions by Defendant American National Insurance Company ("Defendant") to compel discovery responses and extend discovery [dkt. entry no. 48] and for protective order [dkt. entry no. 49], returnable February 7, 2011 and February 22, 2011, respectively. Plaintiff Munich Reinsurance America, Inc. ("Plaintiff") filed opposition papers on January 24, 2011. Defendant filed replies on January 31, 2011. For the reasons stated herein, Defendant's Motions are granted in part.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, "formerly known as American Re-Insurance Company" ("AmRe"), was party to "Workers' Compensation Per Occurrence Excess of Loss Retrocession Agreement[s]" ("Agreements") with Defendant "effective November 1, 2000 through December 31, 2001". See Pl.'s Complaint, dkt. entry no. 1 at 1-2; see also Def.'s Br., dkt. entry no. 44 at 1. Plaintiff alleges that Defendant "agreed to reinsure certain liabilities of Plaintiff arising as a result of Plaintiff's participation in a Workers Compensation Excess of Loss Reinsurance Agreement ("Reinsurance Agreement")...with Everest National Insurance Company ("Everest"). Id. at 2. Specifically, pursuant to the Agreements, Plaintiff alleges that Defendant "agreed to indemnify Plaintiff for the amount of ultimate net loss which may accrue to Plaintiff as a result of loss or losses occurring during the term of...[the Agreements] as a result of [Plaintiff's] participation in the Resinsurance Agreement, covering insurance or resinsurance business in force at the inception of [the Agreements] and business written and/or renewed during the term of [the Agreements]". Id. at 2-3. Further, pursuant to the Agreements, Plaintiff alleges that Defendant "agreed to pay Plaintiff...on demand...[for] Defendant's proportion of all losses and/or loss expenses paid by Plaintiff arising from the [Reinsurance Agreement], including any and all expenses incurred directly by Plaintiff in the litigation, defense and settlement of claims made against Plaintiff by Everest under the [Reinsurance Agreement]". Id. at 3. The Court notes that Plaintiff alleges that the Agreements "shall be governed in all respects, including performance, administration, and interpretation, in accordance with the laws of the State of New York". Id.
Plaintiff "has billed Defendant for and demanded amounts due and owing under the [Agreements], less credits owed by Plaintiff to Defendant, for a total balance of $4,330,578.01". Id. However, Plaintiff alleges that Defendant "has not paid" this balance due or any portion thereof. Id. As a result, Plaintiff filed a Complaint [dkt. entry no. 1] on December 22, 2009 alleging breach of contract (Id. 3-5) and seeking a declaratory judgment for any future losses (Id. at 5-6). In response, Defendant filed an Answer that included Affirmative Defenses of "breach of contract", "failure to satisfy conditions precedent", release of alleged contractual provisions that form the basis of Plaintiff's lawsuit, "failure of consideration", "statutes of limitation/laches", "liability of other parties", "mitigation", release by prior inconsistent conduct, "mutual mistake", "breach of access to records contract provision", bar of claims because Plaintiff seeks reimbursement for underlying insurance claims that were not properly payable, and "suit not appropriate for declaratory relief". See Def.'s Answer, dkt. entry no. 7 at 5-8. Further, Defendant's Answer included a Counterclaim for "refund", "damages in the amount of [the] refund", "costs, attorneys' fees, pre- and-post judgment interest, and all other relief...to which Defendant [is] entitled". Id.
Based upon the Court's initial Pretrial Scheduling Order, discovery in this matter was to be completed by October 1, 2010. [dkt. entry no. 31] In response to Defendant's unopposed application to extend discovery (see dkt. entry nos. 32-34), the Court extended the discovery period to December 1, 2010 [dkt. entry no. 35]. Notably, Defendant served a subpoena on Everest on October 15, 2010 and the parties continued to engage in significant discovery up until the end of November 2010. See Def.'s Br., dkt. entry no. 40 at Ex. 2; see also Def.'s Br., dkt. entry no. 44 at 7-9. The parties notified the Court of significant discovery disputes in late November and early December which became the subject of the pending motions filed by Defendant on January 18, 2011 (see dkt. entry no. 48) and January 20, 2011 (see dkt. entry no. 49).
Specifically, with respect to Defendant's Motion filed under docket entry no. 48, Defendant seeks a Court Order compelling Plaintiff "to answer Defendant's Second Set of Interrogatories, Interrogatory No. 17" ("Interrogatory no. 17"), "Defendant's Third Set of Interrogatories, Interrogatory No. 1" ("Interrogatory no. 1"), and to "present a witness to testify to Defendant's...30(b)(6) notice with respect to Topics 1, 2, and 3". See Def.'s Proposed Form of Order, dkt. entry no. 46-10. Defendant's Interrogatory no. 17 states:
For each of the claims which comprise the balances you contend are owed by Defendant under Counts One and Two of your Complaint and for each claim which you contend is a potential "Future Loss" under Count Three of your Complaint, identify by claim number and claimant number (a) the initial date upon which the claim or accident 'was reserved at 50% of the resinsured attachment point'; (b) the amount you are relying upon for determination of when a claim was at or above 50% of the reinsured attachment point; (c) the date you actually provided notice of the claim to IOA Re and/or Defendant; and (d) the bates number for each such notice.
See Def.'s Br., dkt. entry no. 46-4 at Ex. C. Defendant's Interrogatory no. 1 states:
For each of the claims which comprise the balances you contend are owed by Defendant under Counts One and Two of your Complaint identify by claim number and claimant name for each claim (a) the total amount you allege is owed; (b) the amount which you allege is owed for 'indemnity'; (c) the amount you allege is owed for 'medical'; (d) the amount you allege is owed for 'expense'; and (e) any amount owed for underlying 'extra or non-contractual damages or legal fees and expenses attendant to the defense thereof'.
See Def.'s Br., dkt. entry no. 46-6 at Ex. E. Finally, Topics 1, 2, 3, and 4 of Defendant's 30(b)(6) notice states:
Pursuant to Rule 30(b)(6), Plaintiff shall designate and produce for deposition one or more officer(s), director(s), managing agent(s), or other persons(s) to testify on its behalf, regarding the following matters:
1. The dollar amount that Plaintiff is requesting for each of the Claims including how the amount is apportioned among components of the Claims, including, medical, indemnity, expenses part of loss, loss adjustment expenses, and extra-contractual amounts.
2. The 'handling' of each of the Claims including the timing and amount of the initial amount of setting of reserves and any subsequent modification of the reserves.
3. Plaintiff's demand(s) for payment from Defendant.
4. Damages suffered and/or relief sought by Plaintiff against Defendant.
See Def.'s Br., dkt. entry no. 46-8 at Ex. G.
With respect to Defendant's Motion filed under docket entry no. 49, Defendant seeks a Court Order protecting the "documents listed on Defendant's Privilege Log...from disclosure" and production to Plaintiff. See Def.'s Proposed Form of Order, dkt. entry no. 49-6. Plaintiff has challenged Defendant's Amended Privilege Log entry nos. 1-13 and 19-38, arguing that same are not protected under the work product doctrine, attorney-client privilege, or the common interest doctrine. See Pl.'s Opp'n Br., dkt. entry no. 54 at 4, 9-10; see also Pl.'s Opp'n Br., dkt. entry no. 454-1 at Ex. 1.
A. Defendant's Arguments in Support of the Motion to Compel
Initially, Defendant notes that Plaintiff "brought this action alleging that Defendant is liable...under [the Agreements]" such that "if Plaintiff pays claims, then Defendant must pay Plaintiff". See Def.'s Br. at 1. Further, Defendant notes that the Agreements include a provision whereby certain "categories of claims shall be reported to the Reinsurer immediately regardless of any questions of liability...or coverage" and that Plaintiff's position "has been to ignore this requirement". Id. at 2. Defendant contends that "Plaintiff has...refused to respond to discovery requests where it deems...[Defendant's] defenses are not meritorious" such that "Plaintiff's incomplete production of materials...has prejudiced Defendant". Id. at 3. Notably, Defendant states that through discovery it has learned "that Plaintiff failed to share pertinent loss analysis with IOA Re, Inc. ("IOA Re")", Defendant's reinsurance manager, "at the time [Defendant] was considering whether or not to enter into the Agreements with Plaintiff" and concealed or withheld "material information related to the anticipated amount of losses from the workers compensation program with Everest". Id. at 8-9.
1. Plaintiff should be required to produce a 30(b)(6) designee for deposition.
Defendant maintains that Plaintiff has "refused to produce a corporate designee for Topics 1, 2, and 3" related to Defendant's 30(b)(6) notice. Id. at 8-9. Citing Novartis Phar. Corp. v. Abbott Labs., 203 F.R.D. 159, 161-63 (D. Del. 2001), Johnson v. Geico Cas. Co., 269 F.R.D. 406, 415 (D. Del. 2010), State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227, 235-36 (E.D. Pa. 2008), In re Folding Carton Antitrust Litig., 76 F.R.D. 417, 419 (N.D. Ill. 1977), and MOORE'S FEDERAL PRACTICE -- CIVIL 7-33 § 33.04, Defendant argues that "it is entirely appropriate to seek written discovery concerning facts related to a defense or claim and also seek to depose a witness on the same or similar Topics". Id. at 13-16. Defendant contends that although two (2) of Plaintiff's employees responsible for claims administration were deposed in their individual capacities, neither of these individuals was "prepared to testify as a 30(b)(6) witness", "counsel for Plaintiff declined to allow them to testify as to the collective corporate knowledge", and "electronic logs for all...claims had not been produced at the time of [their] deposition[s]". Id. at 13-16. Citing New Eng. Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164, 169 (D. Mass. 2007), Defendant further argues that "it is not a valid objection to presenting a corporate witness designee that the designee has already been deposed in his individual capacity". Id. at 16.
By way of background, Defendant states that "Plaintiff has a computerized note system whereby its employees can communicate with each other and...retain information regarding claims". Id. at 3-4. Defendant maintains that "this functionality allows Plaintiff to store pertinent information with regard to claims such as when initial reserves are set... [or] instructions to increase or decrease reserve amounts on a claim by claim basis", and contends that "for every claim, there is a log created which provides potentially missing information...such as date and author". Id. Defendant argues that "these logs were...available to Plaintiff prior to...depositions...but were..not produced...until after...deposition[s]", including the "deposition of a corporate representative related to handling of claims and determination of reserves". Id. at 4-5. Defendant further contends that "these logs are necessary to provide contextual information...[regarding] textual entries in the electronic note system" and that "such information is relevant...in order to determine when claims were reserved at 50% of the reinsured attachment point", thereby triggering "Plaintiff's obligation to notify Defendant". Id.
2. Plaintiff should be required to provide answers to interrogatories.
With respect to written discovery, Defendant maintains that Plaintiff "refused to provide an answer to items (a) and (b)" related to Interrogatory no. 17 of Defendant's Second Set of Interrogatories. Id. at 8-9. Citing FED. R. CIV. P. 26(b)(1), Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir. 1999), and Kopacz v. Del. River and Bay Auth., 225 F.R.D. 494, 496 (D.N.J. 2004), Defendant argues that the scope of discovery is broad and "encompasses any matter that bears on or reasonably could lead to other matters that could bear on any issue that is or may be in the case". Id. at 12-13. Similarly, Defendant maintains that Plaintiff "refused to provide detailed answers" to Interrogatory no. 1 of Defendant's Third Set of Interrogatories and suggested that "the answers could be found in documents produced in the litigation without identifying" same. Id. Citing SEC v. Elfindepan, 206 F.R.D. 574, 576 (M.D.N.C. 2002), EEOC v. General Dynamics Corp., 999 F.2d 113, 118 (5th Cir. 1993), and Govas v. Chalmers, 965 F.2d 298, 302 (7th Cir. 1992), Defendant argues that "Plaintiff answered some interrogatories by referring generally to [its] document production instead of responding directly with the information requested". Id. at 5. Defendant maintains that Plaintiff "has attempted to distort the underlying facts involving...presentation of the issue of timing of notice of claims" and has "incorrectly...represent[ed] to the Court that compliance with the terms of the Agreements is a new defense". Id. at 5-8.
3. Discovery should be extended.
Finally, Defendant requests an extension of the discovery end date "to complete the discovery that is the subject of this Motion", ensure full compliance of the subpoena served on Everest, and "for the limited purpose of conducting further investigation into the circumstances surrounding...concealed underwriting information...including...deposition(s) of relevant witnesses". Id. at 17.
B. Plaintiff's Arguments in Opposition to the Motion to Compel
Procedurally, Plaintiff maintains that "the discovery Defendant seeks...relates to...claims and defenses Defendant has sought leave to [assert]" such that Defendant's requests "are outside...the permissible scope...of discovery" unless and until Defendant "is successful in making those claims part of this case". See Pl.'s Opp'n Br. at 3.
1. Interrogatory no. 17(a)-(b) and Topic 2 of Defendant's 30(b)(6) notice are irrelevant and outside the scope of the pleadings.
Substantively, Plaintiff notes that "Interrogatory 17(a) and (b) and Topic 2 of Defendant's 30(b)(6) deposition notice seek information relating to the timing and amount of the initial amount of setting of reserves and any subsequent modification of the reserves" and that same "relates exclusively to whether Plaintiff's claim reporting was in compliance with...the Agreements". Id. at 3-4. Plaintiff argues that Defendant "has never denied a claim on the basis that it was not reported in compliance with...[the Agreements and has not] sought to raise this as a defense to payment" until filing its motion to amend. Id. Plaintiff notes that it "offered to amend its interrogatory responses to provide the dates on which claims were reportable...if Defendant would agree to forego its request for a corporate designee on this Topic", but Defendant "declined that offer". Id. at 4-5.
2. Interrogatory no. 18 and Topic 1 of Defendant's 30(b)(6) notice are irrelevant and outside the scope of the pleadings.
Plaintiff notes that "Interrogatory 18 and Topic 1 of Defendant's 30(b)(6) deposition notice seek a breakdown of the amounts billed by Plaintiff for each claim including how the amount is apportioned among components of the claims, including medical, indemnity, expenses part of loss, loss adjustment expenses, and extra-contractual amounts". Id. at 5-6. Plaintiff argues that because "Defendant is liable to Plaintiff for all...categories of billings about which it asks" other than "extraor non-contractual amounts", the information "sought by Defendant is neither relevant nor reasonably likely to lead to discovery of admissible evidence" given that Plaintiff's witnesses "have testified that there were no extra- or non-contractual amounts billed...by Plaintiff to Defendant". Id. Plaintiff maintains that it "does not maintain...a breakdown into Defendant's categories of the amounts billed" such that in order "to derive the answer to this interrogatory it would have to review the claim documents produced by it, Defendant, and IOA Re, allocate the amounts billed, and calculate the amounts within each category". Id. at 6. Citing FED. R. CIV. P. 33(d)(1) and Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 63 (D.N.J. 1985), Plaintiff argues that "Defendant is in possession of the same documents that Plaintiff would use to conduct this analysis" and "the burden of obtaining the information would be substantially the same" for either party. Id. Plaintiff notes that it "identified and...attached to its interrogatory responses documents which show a breakdown into categories of the amounts billed on the claims" that "were prepared by Defendant and IOA Re during Defendant's audit of Plaintiff's claims files...prior to the filing of this suit" and that Defendant "offers no explanation...why it needs this information again or why it should be Plaintiff's burden...to calculate...". Id. at 7-8.
3. Interrogatory no. 16 and Topic 1 of Defendant's 30(b)(6) notice are irrelevant and outside the scope of the pleadings.
Plaintiff contends that it has fully responded to Interrogatory no. 16 by stating that the "reinsured attachment point is $500,000" and responded to Interrogatory no. 17 items (c) and (d) "by providing a chart listing each claim, the date upon which notice was first provided to IOA Re, and the bates number references for the notice documents". Id. at 8-9.
With respect to Defendant's 30(b)(6) deposition notice, Plaintiff notes that "Topic 2...requests a designee to testify on Plaintiff's claims handling". Id. at 10-11. Plaintiff contends that Defendant "has already deposed the two individuals...responsible for claims handling" in their individual capacities and "knew before it noticed these depositions that if Defendant intended to take a 30(b)(6) deposition on claims handling, Plaintiff would designate" the same individuals and would oppose an attempt by Defendant to depose them twice. Id. Plaintiff maintains that Defendant "took extensive testimony" during those depositions "for a total of more than eleven (11) hours and obtain[ed] more than 600 pages of testimony" and argues that Defendant's request "to compel additional deposition testimony...is unreasonably cumulative, duplicative and burdensome" pursuant to FED. R. CIV. P. 26(b)(2)(c), Novartis, 203 F.R.D. at 163, Johnson, 269 F.R.D. at 415-16, and State Farm, 254 F.R.D. at 235-36. Id. at 10-12.
With respect to Defendant's 30(b)(6) deposition notice, Plaintiff notes that "Topic 3...[relates to] Plaintiff's demands for payment from Defendant". Id. at 13. Plaintiff maintains that in response to Interrogatory 18, it provided "a table setting forth...claimant name, claim number, amounts due from Defendant and reserves" and stated that "there have been no claims from Everest to Plaintiff that involved extra or non-contractual damages or legal fees and expenses attendant to the defense thereof and no portion of the amounts billed by Plaintiff to Defendant include extra or non-contractual damages or legal fees and expenses attendant to the defense thereof". Id. at 12-13. Plaintiff argues that it "produced Thomas Mauch to testify on the damages suffered and/or relief sought by Plaintiff against Defendant" and maintains that it "requested clarification" as to producing a 30(b)(6) witness related to Topic 3 because "Defendant...already deposed" Mr. Pawlowski. Id. at 13-14. Plaintiff "declines to produce Mr. Pawlowski for a second time to testify about the same documents and matters" because Defendant "could have, but...chose not to, notice Mr. Pawlowski as a 30(b)(6)" designee and because Topic 3 "is duplicative of Topic 4" to the extent it "refers to the billings from Plaintiff to Defendant that comprise Plaintiff's damages". Id.
4. Discovery should not be extended.
Plaintiff argues that Defendant's request to extend discovery in order "to conduct additional fact discovery regarding...[alleged] concealed underwriting information" relates "exclusively to claims...not part of this case and not before the Court" that are "neither relevant nor reasonably likely to lead to the discovery of admissible evidence". Id. at 14.
C. Defendant's Arguments in Support of the Motion for Protective Order
Preliminarily, Defendant states that it has withheld certain documents as set forth in its Amended Privilege Log on the basis of work product privilege, attorney-client privilege, and the common interest doctrine and requests "that the Court grant it protection from producing" these items although it is willing to "tender to the Court the documents for an in camera inspection". See Def.'s Br. at 1-2. Defendant, noting that "pursuant to a contract between IOA Re and Defendant, IOA Re was granted authority to enter into certain types of reinsurance contracts on Defendant's behalf", maintains that "IOA Re, as Defendant's agent with authority to bind risk on behalf of Defendant, entered into the Treaties with Plaintiff" and "was responsible for managing all respects of the Treaty on Defendant's behalf from contract formation to payment of claims". Id. at 2-3. Specifically, Defendant states that IOA Re's responsibilities included "underwriting and placement", "receiving premiums on Defendant's [behalf]", "monitor[ing] and maintain[ing] records for the receipt of...premium payments", maintaining "all records of transactions with Plaintiff" and making "payment of amount[s] due to Plaintiff", calculating "amounts due to Plaintiff without Defendant's involvement with either the calculations or payments prior to the time Plaintiff filed the lawsuit against Defendant", and calculating and setting "reserves on behalf of Defendant". Id. Defendant contends that "Plaintiff has...treated Defendant and IOA Re as if they were a single entity" until this dispute, noting that "Plaintiff made demand upon IOA Re to make payment of the sums it seeks in the litigation", "Plaintiff's discovery effort has been primarily aimed at IOA Re rather than Defendant", and "Plaintiff noticed five current and former IOA Re employees for depositions" while only two employees of Defendant. Id. at 3-4. Further, Defendant maintains that it agreed with IOA Re both orally and in writing "that they had a common interest in defending against Plaintiff's claims" and argues that Defendant "must...have free access to the knowledge, interpretations, opinions, and records of its agent IOA Re in order to prepare...for a trial of this matter...[such] that access must be without the burden of disclosure to Plaintiff". Id. at 4. Defendant argues that it enjoys a "special agency relationship" with IOA Re such that Defendant is entitled "to protection for all of the items listed in the Amended Privilege Log". Id. at 22.
1. All of the subject documents are protected from disclosure under the work product doctrine.
Defendant notes that it has "asserted the work product protection for each and every one of the documents listed in the privilege log" because certain items "contain work product of [its] attorneys" while other items are "the work product of IOA Re which includes the work product of Mr. Charles Leasure, attorney and agent of IOA Re, [Defendant's] agent's agent". Id. at 4-5. Citing FED. R. CIV. P. 26(b)(3)(A), United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 966-67 (3d Cir. 1988), Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989), and Maertin v. Armstrong World Indu., Inc., 172 F.R.D. 143, 148 (D.N.J. 1997), Defendant maintains that "both categories of documents are entitled to work product protection" and argues that "Rule 26 provides a qualified immunity that protects a party from producing or disclosing (1) work product (2) prepared in anticipation of litigation (3) by a party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)". Id. at 4-6. Citing The Times of Trenton Publishing Corp. v. Public Utility Service Corp., 2005 U.S. Dist. LEXIS 34624, at *12 (D.N.J. 2005) and United Coal, Defendant maintains that "it is well established that the correct question is whether the material was created by or for a party or that party's representative", that "federal courts have consistently ruled that the work product doctrine is not inapplicable merely because the material was prepared by or for a party's insurer or agents of the insurer", and that "the Third Circuit...[has cited] with approval numerous federal decisions protecting communications made by agents of insurers". Id. at 6-7. Citing Deshields v. Mt. Laurel Resort & Spa, 2010 U.S. Dist. LEXIS 116522, at *6-7 (M.D. Pa. 2010), Defendant states that "IOA Re was (and is)" its agent and notes that Plaintiff "has not attempted to show that the materials are otherwise discoverable under FED. R. CIV. P. 26(b)(1)...[such] that [it] has substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means". Id. at 7-8. Further, Defendant notes that the "the Amended Privilege Log includes both opinion and ordinary work product". Id. at 9-10. Defendant argues that, based in part on the deposition testimony of Edward Pawlowski, Plaintiff's Vice President, "there could be no doubt that litigation was anticipated by April 3, 2009" and that "all of the documents listed in the Privilege Log concern this lawsuit and the claims alleged by Plaintiff or defenses and/or claims available to Defendant" including the "mental impressions of Defendant and/or its agents or representatives". Id. Finally, noting that it has asserted that "work product protection applies to...(1) work product prepared by or exchanged between Defendants and...IOA Re, (2) work product prepared by or exchanged between Defendant and its attorneys, (3) work product prepared by or exchanged between the agents and representatives of Defendant and IOA Re, including attorney representatives, and (4) work product prepared by or exchanged among Defendant, IOA Re, Defendant's attorney representatives and IOA Re's attorney representatives", Defendant maintains that "all of the aforementioned consist of the creation, exchange and/or communication of work product between Defendant and its various agents or representatives". Id. at 10.
2. Documents withheld on the basis of attorney-client privilege should be protected from disclosure.
Citing FED. R. EVID. 501, In re Grand Jury Investigation, 918 F.2d 374, 379 n.6 (3d Cir. 1990), and Spectrum Systems Intern. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (N.Y. 1991), Defendant maintains that New York law guides the Court's inquiry with respect to the application of the attorney-client privilege. Id. at 13-14. Defendant argues that "attorney-client communications are afforded extensive protection under New York Law" to the extent those communications are "made for the purpose of facilitating the rendition of legal advice or service in the course of a professional relationship". Id. Noting that it included in its Amended Privilege Log "items that are communications with its attorneys'...which pertain to the instant dispute with Plaintiff", Defendant contends that these documents should be protected from disclosure. Id.
3. Documents withheld on the basis of the common interest doctrine should be protected from disclosure.
Citing FED. R. EVID. 501, In re Grand Jury Investigation, 918 F.2d 374, 379 n.6 (3d Cir. 1990), In re Megan-Racine Associates, Inc., 189 B.R. 562 (Bankr. N.D.N.Y. 1995), Parsi v. Leppard, 660 N.Y.S.2d 951, 960 (N.Y. Sup. Ct. 1997), and Aetna Casualty & Surety Co. v. Certain Underwriters at Lloyd's London, 676 N.Y.S.2d 727 (Sup.Ct. Ny.Y. Co. 1998), Defendant maintains that New York law guides the Court's inquiry with respect to the application of the common interest doctrine. Id. at 14-18. Defendant argues that "the common interest doctrine is an extension of the attorney-client privilege and the work product protection", that this privilege "stands as an exception to the traditional rule that the presence of a third party, ...[who is] not an agent or employee of counsel, at a communication between counsel and a client is sufficient to deprive the communication of the confidentiality which is one of the pillars of the privilege", and that in order to determine whether material is protected under this privilege the Court must determine "(1) whether the parties are entitled to assert the doctrine and (2) whether the material at issue is properly subject to a privilege claim". Id. Defendant contends that "the relationship between [it] and IOA Re, their alignment and interests in this lawsuit, and their conduct after Plaintiff threatened and then brought this lawsuit, all demonstrate Defendant's and IOA Re's common interest in marshaling a joint defense in response to Plaintiff's claims and the desire of Defendant and IOA Re to keep communications concerning their litigation thoughts and plans confidential". Id. at 18-19. Citing American Re-Insurance Co. v. United States Fidelity & Guaranty Co., 837 N.Y.S.2d 616 (N.Y. App. 2007), In re Grand Jury Subpoenas, 89-3, 902 F.2d 244, 249 (4th Cir. 1990), In re Megan-Racine, 189 B.R. at 571, Cooley v. Strickland, 2010 U.S. Dist. LEXIS 92856, at *28-29 (S.D. Oh. 2010), Gucci America, Inc. v. Gucci, 2008 U.S. Dist. LEXIS 101760, at *2-3 (S.D.N.Y. 2008) and In re Bevill, Bresler & Schulman Asset Mgmt., 805 F.2d 120, 126 (3d Cir. 1986), Defendant maintains that "[it] and IOA Re have common interests such that their communications concerning this litigation may be protected", that Defendant and IOA Re "explicitly intended to enter into ...