ITT Corp. v. Travelers Cas. & Sur. Co., No. 3:12-CV-38, 2017 U.S. Dist. LEXIS 11196 (D. Conn. Jan. 27, 2017).

This litigation commenced in 2012 when an indemnity policyholder and an insurance policyholder alleged that their insurer had changed its interpretation of the policies to effectively eliminate their coverage. Discovery remains ongoing because the district court stayed the case for more than three years beginning in February 2013. Discovery motions, including the present dispute, have permeated the litigation since the first such motion appeared on the docket less than two months after the policyholders filed their complaint.  

Prior to the litigation, the insurer had requested that the Associate General Counsel of its reinsurance department produce a memo analyzing the reinsurance implications of different coverage scenarios for claims made under policies similar to those at issue in the case. The policyholders requested production of this reinsurance analysis memo on the theory that it might shed light onto the insurer’s prior interpretation of its policies. The insurer claimed that the attorneyclient privilege and attorney work product doctrine protected the reinsurance analysis memo and refused to produce the document. 

Interpreting Connecticut law, the court pointed out that the insurer, as the party claiming the privilege, had the burden of establishing that the reinsurance analysis memo had been prepared either in anticipation of litigation or for the predominant purpose of communicating legal advice. The court determined that the insurer had not established facts sufficient to warrant protection. Privilege could not rest upon the mere fact that the creator of the reinsurance analysis memo held the title of Associate General Counsel with the insurer. Accordingly, the court ordered the insurer to provide the document to the court for in camera review, with the expectation that it will ultimately be produced to the policyholders.

This is another in a long line of cases from many jurisdictions allowing documents created by outside and in-house counsel to be produced to policyholders where the party seeking to maintain the privilege cannot tie the document to anticipated litigation or a request for legal advice.