Webcor-Obayashi Joint Venture v. Zurich American Insurance Company

Background

A special master overseeing a discovery dispute found that one of Zurich’s documents was not protected by attorney-client privilege. The special master ordered Zurich to produce an unredacted copy to Webcor-Obayashi Joint Venture.

Zurich objected to that order. Zurich argued that the special master had made clear errors in at least three material factual findings and had relied on those errors in concluding that the document was not privileged.

Court’s Review

The court reviewed the special master’s factual findings for clear error. That standard requires a definite and firm conviction that a mistake was made; plausible findings supported by the record cannot be reversed merely because the reviewing court might have reached a different conclusion. The court reviewed the special master’s legal conclusions independently, except where applying the law to the facts required an essentially factual inquiry.

The court reviewed the special master’s order, Zurich’s objection, Webcor-Obayashi’s reply, and the record submitted by the parties. It found that the factual findings concerning Ms. Franklin’s declaration and deposition testimony were plausible and supported. The court also agreed with the special master’s findings about the lack of evidence showing that the information was requested for Ms. Frost or to enable Ms. Frost to provide legal advice, including the absence of a declaration from Ms. Frost.

Ruling

Judge Susan Illston overruled Zurich’s objection and adopted the special master’s Order No. 2. The court found no clear error in the special master’s factual findings or legal conclusions and directed Zurich to comply with the order immediately.