Berkley Custom Insurance Managers v. York Risk Services Group, Inc.

Background

Berkley Custom Insurance Managers was the plaintiff, and York Risk Services Group, Inc. was the defendant. York filed seven sets of exhibits, identified as ECF Nos. 40-1 through 40-7, in connection with York’s motion to compel documents exchanged between Berkley and its coverage counsel, Wade Clark Mulcahy LLP. The exhibits included email communications, coverage opinions concerning three underlying personal-injury matters, and billing records for legal advice.

Berkley stated that the documents had been produced to York in response to York’s subpoena to Wade Clark and were marked “CONFIDENTIAL.” Berkley argued that the documents were protected by the attorney-client privilege and work-product protection. It also argued that the documents remained privileged as to parties other than York, including NYCHA, even though they had been shared with York when York was acting as Berkley’s agent in administering claims.

Sealing request

Berkley asked the court to seal the exhibits because York had made the protected documents publicly available without first notifying Berkley or Wade Clark. Berkley argued that sealing was justified by the need to preserve attorney-client privilege and that leaving the documents public would substantially prejudice Berkley by allowing NYCHA and other entities to review legal advice related to Berkley’s coverage positions. Berkley further argued that York would not be prejudiced because the documents had been disclosed to York under a protective order and remained available for use by the parties in the litigation.

Ruling

The memorandum was endorsed with an order directing the clerk to seal the exhibits listed in Berkley’s request. Judge Lewis J. Liman ordered that the exhibits could be viewed only by the parties—Berkley Custom Insurance Managers and York Risk Services Group, Inc.—and by the court. The opinion does not separately state a ruling on York’s underlying motion to compel.