Pacific Life Insurance Company v. The Bank of New York Mellon
- Katherine Failla
- 1:17-cv-01388
- U.S. District Court · Southern District of New York
- 14
In Pacific Life v. The Bank of New York Mellon, Judge Failla largely upheld privilege claims after reviewing discovery documents, but ordered some disclosures and supplemental submissions.
The Bank of New York Mellon must disclose specified documents or provide supplemental privilege explanations within 30 days; the Pacific Life plaintiffs may receive documents that the court found unprivileged.
What happened
Pacific Life Insurance Company and Pacific Life & Annuity Company disputed The Bank of New York Mellon’s withholding of documents under the attorney-client privilege and work product doctrine. The court reviewed 154 documents in 12 privilege-log categories, plus 35 documents for context.
The court generally found that the withheld materials were created or gathered at lawyers’ direction to obtain or provide legal advice. It upheld most of the privilege claims, but found some documents were not privileged and lacked enough information for a final decision on others.
Judge Katherine Polk Failla ordered disclosure of specified documents within 30 days and allowed The Bank of New York Mellon to submit additional explanations for documents whose privilege status remained uncertain. The court did not address documents withheld under the bank examination privilege.
The detailed version
- Pacific Life Insurance Company v. The Bank of New York Mellon · No. 1:17-cv-01388
- Katherine Failla
- Nov. 23, 2020
Background
This order resolves disputes concerning The Bank of New York Mellon’s withholding of documents based on the attorney-client privilege and the work product doctrine. The court conducted an in-camera review, meaning it examined the documents privately, of 154 documents in 12 privilege-log categories and 35 additional documents provided for context.
The attorney-client privilege protects confidential communications between a client and lawyer made for the purpose of obtaining or providing legal advice. The work product doctrine generally protects documents prepared by or for a party or its representative in anticipation of litigation. The court applied federal common law to the attorney-client privilege and federal law to the work product doctrine.
Category-by-category rulings
The court upheld the attorney-client privilege claims for Categories 6, 21, 24, 35, 42, and 80. The documents in those categories involved legal advice or information gathered at the direction of counsel to assist counsel in providing legal advice.
For Category 43, the court ordered disclosure of the documents at Tabs 1 and 2 because it did not consider them privileged. As to the document at Tab 76, the court could not make a final determination. The Bank of New York Mellon was directed either to disclose it within 30 days or to submit a supplemental in-camera explanation for why the privilege applies.
For Category 55, the court found that many documents were privileged, but ordered disclosure of the documents at Tabs 54, 55, 56, 58, and 67. The court stated that the documents it found privileged were also likely protected by the work product doctrine, but it would require more information about whether they were prepared in anticipation of litigation before making a final determination under that doctrine.
For Category 57, the court found the documents privileged under the attorney-client privilege and stated that it was inclined to find them protected by the work product doctrine, subject to additional information about the anticipation-of-litigation requirement.
For Category 75, the court found most of the reviewed documents privileged. It identified three communications that did not appear privileged—the carryover email at 4:33 p.m. on BNYMDOC0007, the email at 12:59 p.m. on BNYMDOC0009, and the email at 11:41 a.m. on BNYMDOC0013—and directed counsel either to produce them in redacted form or explain their irrelevance. The court also found that it lacked enough information to make a final privilege determination for the documents at Tabs 61 and 62. The Bank of New York Mellon was directed either to disclose those documents within 30 days or submit supplemental in-camera explanations.
For Category 77, the court upheld the attorney-client privilege claims for the reviewed documents and stated that it was inclined to find them also protected by the work product doctrine, subject to additional information.
Conclusion and effect
The court stated that it largely agreed with The Bank of New York Mellon’s privilege designations. It upheld the attorney-client privilege for the entries described as privileged, ordered production within 30 days for entries whose privilege claims it rejected, and required supplemental submissions within 30 days for entries needing further explanation. The court did not address Category 95, which involved documents withheld under the bank examination privilege, because of later developments in the record.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.