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Liberty International Underwriters Canada v. Scottsdale Insurance Co.

United States District Court, D. New Jersey

October 6, 2017

LIBERTY INTERNATIONAL UNDERWRITERS CANADA, Plaintiff,
v.
SCOTTSDALE INSURANCE COMPANY and INFINITY ACCESS LLC, Defendants.

          STEPHEN ALLEN LONEY, JR. HOGAN LOVELLS U.S. LLP MARK C. GOODMAN (pro hac vice) HOGAN LOVELLS U.S. LLP On behalf of plaintiff Liberty International Underwriters Canada

          GARY S. KULL APRIL T. VILLAVERDE CARROLL, McNULTY & KULL LLC LISA MARTIN LAMPKIN (pro hac vice) SELMAN BREITMAN LLP On behalf of defendants Scottsdale Insurance Company and Infinity Access LLC

          AMENDED MEMORANDUM OPINION & ORDER

          NOEL L. HILLMAN, U.S.D.J.

         WHEREAS, pending before the Court is the motion of Defendants, Scottsdale Insurance Company and Infinity Access LLC, seeking leave to appeal the Magistrate Judge's resolution of a discovery dispute involving Defendants' request for documents that Plaintiff, Liberty International Underwriters Canada (“Liberty”), claims are protected by the attorney-client privilege and work-product doctrine[1]; and

         WHEREAS, the dispute over these documents has been before this Court twice before:

         First, on the cross-motions by Liberty and Defendants Scottsdale Insurance Company and Infinity Access LLC appealing the Magistrate Judge's decision that some of Liberty's privileged documents should be produced to Defendants, where in a summary Order this Court determined that the Magistrate Judge's decision was not “clearly erroneous or contrary to law” (Docket No. 128); and

         Second, on Liberty's motion asking the Court to reconsider its denial of the parties' cross-motions, where the Court held oral argument and subsequently determined that the issue warranted remand, explaining that even though the Court remained unconvinced that the decision by the Magistrate Judge was “clearly erroneous or contrary to law, ” there was sufficient ambiguity regarding the application of In re Kozlov, 398 A.2d 882, 887 (N.J. 1979), and its progeny, to warrant remand in order to allow the Magistrate Judge to more fully explain his findings and the application of the Koslov test, as modified by subsequent decisions, to the unique facts of the case, and so that he may more explicitly articulate whether the predicate circumstances necessary to pierce the attorney-client privilege exist in this matter (Docket No. 137); and

         WHEREAS, the Magistrate Judge followed this Court's direction, having determined that Kozlov did not require that Liberty's privilege be pierced because it did not explicitly or implicitly waive its privilege and because Liberty did not place advice of counsel “at issue, ” and the Magistrate Judge reversed his prior order directing that the privileged documents be produced to Defendants (Docket No. 142); and

         WHEREAS, Defendants filed a motion before the Magistrate Judge seeking reconsideration of his decision deeming Liberty's documents as privileged, and on January 25, 2017, the Magistrate Judge denied Defendants' motion, reiterating that Liberty did not affirmatively place the settlement agreement “at issue” but was merely seeking to defend Defendants' affirmative defense, which is that the settlement agreement is valid and bars Liberty's claims against them (Docket No. 159); and

         WHEREAS, Defendants have brought the issue before this Court for a third time in their instant motion for leave to appeal the Magistrate Judge's January 25, 2017 decision; and

         WHEREAS, Defendants argue that the Magistrate Judge erred when he determined that Liberty did not place the settlement agreement “at issue, ” and that Liberty did not rely upon communications with counsel; and

         WHEREAS, in their motion, Defendants disagree with the Magistrate Judge's reversal of his decision that had originally directed Liberty to produce some of its privileged documents; and

         WHEREAS, the Magistrate Judge having recognized Defendants' disappointment of his changed decision:

The Court is not oblivious to defendants' frustration. In fact, as early as December 10, 2014, the Court wrote that fairness dictates that some of plaintiff's privileged documents be produced and defendants have a substantial need for the documents. However, based on recent cases interpreting Kozlov, fairness and need is not enough to justify the production of privileged information. Essentially the same ruling applies to the “at issue” waiver doctrine because the Third Circuit has held that even if facts are “vital, highly probative, and directly relevant or go to the heart of an issue, ” this does not justify a privilege waiver. Instead, only if plaintiff affirmatively interjects privileged communications into the case does an implied waiver occur. This has not occurred here for two main reasons. One, defendants and not plaintiff raised the assignment issue as an affirmative defense. Two, plaintiff has affirmatively represented it will not rely on privileged communications. Further, the Court agrees with plaintiff that “[p]roducing witnesses to testify - in response to Infinity's arguments - that Plaintiff did not authorize assignment of its rights is simply not the same as affirmatively relying on privileged communications that might ‘memorialize' the underlying facts.” Thus, [Liberty's corporate representative's] minimal deposition testimony that ...

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