Pilkington North America, Inc. v. Mitsui Sumitomo Insurance Company of America
- John Keenan
- 1:18-cv-08152
- U.S. District Court · Southern District of New York
- 12
In Pilkington v. Mitsui Sumitomo, Judge Gorenstein granted MSI’s motion to compel production of documents after Pilkington waived work-product protection by sharing them with Aon.
Pilkington must produce the documents at issue to MSI within seven days; the ruling concerns documents Pilkington shared with Aon during insurance-claim preparation.
What happened
In Pilkington North America, Inc. v. Mitsui Sumitomo Insurance Company of America, Pilkington withheld or redacted documents created while Aon helped prepare its insurance claim after a tornado damaged its factory. Mitsui Sumitomo Insurance Company of America asked the court to order Pilkington to produce those documents.
The court ruled that Pilkington lost protection for the documents because it shared them with Aon, which could have become Pilkington’s opponent in a dispute over the insurance coverage. The court rejected Pilkington’s arguments that a confidentiality agreement and a shared interest with Aon preserved the protection.
Judge Gorenstein granted the motion to compel and ordered Pilkington to produce the documents within seven days.
The detailed version
- Pilkington North America, Inc. v. Mitsui Sumitomo Insurance Company of America · No. 1:18-cv-08152
- John Keenan
- Apr. 5, 2022
Background
Pilkington brought claims against Mitsui Sumitomo Insurance Company of America (MSI) and Aon Risk Services Central, Inc. The claims arose from a tornado that struck Pilkington’s glass manufacturing factory in Ottawa, Illinois, on February 28, 2017. Pilkington estimated its resulting property damage and other losses at $60 million to $100 million. MSI paid $15 million but denied coverage for losses above that amount, citing a revised windstorm sublimit.
After learning about the sublimit, Pilkington retained Aon as a consultant to help prepare its insurance claim. Pilkington’s outside counsel also communicated with Aon. Pilkington withheld or redacted documents created during Aon’s claim-preparation work from March through August 2017, asserting protection under the work-product doctrine. That doctrine generally protects documents prepared because of anticipated litigation from discovery by an opposing party.
MSI moved to compel production of the documents. The opinion addressed whether Pilkington waived work-product protection by sharing the documents with Aon. The court did not need to decide whether the documents otherwise qualified for work-product protection because it found that Pilkington had waived the protection.
Court’s Analysis
The court explained that disclosure to a third party does not automatically waive work-product protection. Waiver occurs when disclosure substantially increases the opportunity for a potential adversary to obtain the information. The court also explained that the party asserting the protection bears the burden of proving both the protection and the absence of waiver.
The court found that Aon was a potential adversary regarding the very issues discussed in the documents. Pilkington’s claims alleged that Aon helped facilitate changes to the windstorm sublimit, advised Pilkington about those changes, and acted as an intermediary concerning the insurance coverage. The court also relied on an April 26, 2017, presentation titled “PNA-MSI-Aon Litigation Strategy,” which indicated that Pilkington anticipated litigation involving both Aon and MSI while the documents were being created.
The court rejected Pilkington’s reliance on the consulting agreement’s confidentiality provisions. Because Aon itself was the potential adversary that received the documents, the agreement did not prevent the work product from reaching that potential adversary. The court also rejected Pilkington’s common-interest argument. Although Pilkington and Aon shared an interest in obtaining payment from MSI, they also had opposing interests concerning Aon’s possible responsibility for the coverage dispute.
Disposition
Judge Gabriel W. Gorenstein granted MSI’s motion to compel, docket number 296. The court held that Pilkington waived work-product protection by disclosing the documents to Aon and therefore also waived that protection as to MSI. Pilkington was ordered to produce the documents at issue within seven days.
Classification Note
This is a procedural order concerning discovery and work-product protection. The court did not decide the parties’ underlying insurance claims.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.