In Estee Lauder v. OneBeacon Insurance Group, LLC, the New York Supreme Court ordered an insurer to produce “post-litigation” documents regarding its delay in the payment of defense costs as part of a bad faith claim against the insurer. No. 602379/05 (N.Y. Sup. Ct. Apr. 15, 2013). In 2005, Estee Lauder sued OneBeacon for defense costs and indemnity arising out of claims brought by the state of New York relating to Estee Lauder’s alleged dumping of hazardous materials in two Long Island landfills. After securing favorable rulings on its declaratory judgment and breach of contract claims on appeal, Estee Lauder later brought a bad faith claim against OneBeacon based on a twenty-month delay in the insurer’s payment of defense costs following the decision. According to Estee Lauder, OneBeacon postponed the payments owed in an attempt to pressure the company to enter into a global settlement. Estee Lauder sought several categories of documents related to the delay, including meeting agendas, written recommendations, claims file notes and other internal correspondence following the decision on appeal. Estee Lauder characterized these documents as relevant to the core of the bad faith claim and discoverable as part of OneBeacon’s ordinary course of business. OneBeacon argued that no substantial need for any additional discovery existed and in the alternative, claimed that such documents were part of its litigation strategy and therefore privileged. The New York Supreme Court agreed with Estee Lauder that the documents at issue were “clearly relevant” to the bad faith claim, which was based not on the original coverage denial but rather on the delay in payment. The court also held that OneBeacon was not entitled to a “categorical privilege” for documents created after the start of litigation, although it had not waived any legitimate privilege claims as to individual documents. Because the appellate decision resolved the question of whether OneBeacon had an obligation to pay Estee Lauder’s defense costs, the court reasoned that the logic of maintaining a categorical post-litigation bar had been removed.