Pollock v. Federal Insurance Company

Background

As fact discovery neared completion, the parties filed joint letters about discovery disputes and could not agree on some deadline extensions. This order addressed the disputes in docket numbers 164 and 167.

Docket No. 164: Attorney-Client Privilege

The plaintiffs challenged Federal’s assertion of attorney-client privilege—a protection for confidential communications made to obtain or provide legal advice—as to documents produced by consultants who assessed damage to the plaintiffs’ property. They asked the court to compel production of withheld emails, remove redactions, and allow them to finish deposing the consultants.

The consultants included Thomas Kirkpatrick of Contents Consulting, Michael Diliberto of Baker Tilly, and Frank Spina of Salco. Federal stated that the consultants worked on claim adjustment and also participated in communications with Federal’s attorneys. The court found that Federal did not provide specific facts showing that the withheld communications were reasonably necessary for providing legal advice. The plaintiffs provided testimony suggesting that some communications merely copied attorneys to keep them informed, resulted from a “reply all” response, or concerned claim adjustment rather than legal advice.

The court concluded that Federal had not properly invoked attorney-client privilege for communications involving Kirkpatrick, Diliberto, and Spina. It ordered Federal to produce all responsive communications withheld on that basis, in unredacted form, by January 23, 2025. It also allowed the plaintiffs to complete the consultants’ depositions by February 14, 2025, limited to the redacted or withheld material produced under the order. The court found the request concerning consultant Salvagni moot because Federal represented that it was not withholding communications involving that consultant on privilege grounds.

Docket No. 167: Other Discovery Requests

The plaintiffs challenged Federal’s refusal to produce documents created after Federal’s March 22, 2024 coverage determination. The court declined to reject the request as untimely, but denied relief because the plaintiffs had identified no specific documents or categories that were improperly withheld, and because many later-created documents might be privileged. The court determined that the likely burden of another privilege review outweighed the likely benefit under Federal Rule of Civil Procedure 26(b).

The plaintiffs also argued that Federal improperly withheld loss-reserve information. Federal argued that reserve information was irrelevant and not discoverable in this first-party property-insurance case. The court rejected that position, relying on a prior decision that found reserve information relevant to a bad-faith claim in a first-party property-insurance case. The court stated that the plaintiffs’ allegations were similar regarding intentional delay and ordered Federal to produce responsive information related to loss reserves by January 23, 2025.

Finally, the plaintiffs requested permission to take five additional fact depositions. The court granted that request, finding good cause, and required the depositions to be completed by February 14, 2025.

Disposition

The court ordered production of the specified consultant communications and loss-reserve information, denied the request for documents created after the coverage-determination cutoff, granted leave for five additional depositions, and found the request concerning Salvagni moot.