Pollock v. Federal Insurance Company
- Joseph Spero
- 3:21-cv-09975
- U.S. District Court · Northern District of California
- 5
In Pollock v. Federal Insurance Company, Judge Spero held outside counsel’s communications privileged and rejected plaintiffs’ request for review or production.
The ruling affects the plaintiffs, Federal Insurance Company, and Federal’s outside counsel, Eric Freed, by declining to order production or private court review of Freed’s communications with Federal and requiring further negotiations about the plaintiffs’ production.
What happened
In Pollock v. Federal Insurance Company, the parties disputed whether Federal’s outside counsel, Eric Freed, had to produce documents requested by the plaintiffs.
Federal argued that Freed was retained to provide legal advice, while the plaintiffs argued that he acted as an insurance claims adjuster and therefore could not claim attorney-client privilege over his communications with Federal.
Judge Spero ruled that Freed’s main relationship with Federal was as an attorney providing legal advice. The court rejected the plaintiffs’ request to review Freed’s communications privately or order their production, and ordered the parties to meet and confer about the plaintiffs’ production before reporting any remaining disputes.
The detailed version
- Pollock v. Federal Insurance Company · No. 3:21-cv-09975
- Joseph Spero
- Jan. 7, 2025
Background
The parties submitted a joint discovery letter about whether Federal Insurance Company’s outside counsel, Eric Freed, had to produce documents responding to the plaintiffs’ requests. Federal argued that Freed was retained shortly before the plaintiffs filed this action to provide legal advice. The plaintiffs argued that Freed acted as an insurance claims adjuster, so Federal could not assert attorney-client privilege over communications between Freed and Federal.
Federal supported its position with declarations from Christopher Lassiter, the adjuster primarily responsible for handling the plaintiffs’ insurance claim, and Eric D. Freed.
Legal Standard
Applying California law, the court explained that attorney-client privilege depends on the dominant purpose of the attorney-client relationship. The privilege does not apply when the client’s main purpose in retaining the attorney was something other than receiving legal opinions or legal advice.
Court’s Analysis
The court concluded that Freed’s primary relationship with Federal was as an attorney retained to provide legal advice in connection with the litigation. The court found that Freed’s retention shortly before the litigation, and in connection with anticipated litigation, supported that conclusion.
The court rejected the plaintiffs’ arguments based on several aspects of Freed’s work. Freed was not licensed to practice law in California, but the court found that fact did not show he was primarily an adjuster. Freed also requested and scheduled documents, sought documents, and conducted the plaintiffs’ examinations under oath during the claims process. The court held that those activities did not significantly support treating him as an adjuster, noting that the evidence showed he was providing legal advice and that taking examinations under oath did not by itself create an inference that he was a claims adjuster.
The court likewise found that Freed’s sending insurance coverage letters to the plaintiffs’ counsel did not establish that he was a claims adjuster. It distinguished a case in which an attorney had been the only person handling claims, issued detailed coverage letters, and issued coverage payments directly to the plaintiff. The court found no comparable evidence that Freed played such a role in adjusting the plaintiffs’ claim. It also rejected the argument that Freed was a claims adjuster because he served as a primary point of contact in the claims-adjustment process. The court found that Federal’s declarations were sufficient to establish that the attorney-client relationship was the dominant relationship.
Ruling
The court found that Freed’s primary relationship with Federal was attorney-client. It therefore rejected the plaintiffs’ request for an in-camera review, meaning a private review by the court, of Freed’s communications with Federal and rejected the request to compel production of those communications.
Regarding Federal’s request for the court’s intervention concerning the plaintiffs’ production, the court ordered the parties to meet and confer and file a report about their negotiations and any unresolved disputes by January 16, 2025.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.