Preview
FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ZURICH AMERICAN INSURANCE COMPANY,
Index No.: 652336/2018
Plaintiff,
-against- REPLY AFFIRMATION IN
FURTHER SUPPORT OF
FIRST SPECIALTY INSURANCE ZURICH'S MOTION TO
CORPORATION,
WESTERN BEEF INC. and WESTERN
COMPEL
RETAIL,
BEEF PROPERTIES, INC.
Defendants.
Lindsey LaFond, Esq., an attorney duly
admitted to practice law before the Courts of the
State of New York, affirms the truth of the following, under the penalties of perjury and pursuañt
to CPLR §
2106:
1. I am an Associate with the firm of Coughliñ Duffy LLP, attorney
for Plaintiff
Zurich American Insurance Company ("Zurich") and, as such, am fully
familiar with the facts
and circumstances set forth herein, with the source of my knowledge being the records of Zurich
maintained by our office.
2. I submit this
reply
affirmation in further support of Zurich's menon pur:raañt to
CPLR §
3124 for an Order compelling Non-Party Robert E. Brown, P.C. (the "Brown Firm") to
fully
respond to Zurich's Document Subpoena Request; and for such other and further relief as
this Court may deem just and proper together with the costs of this motion.
3. Because the Brown Firm has not opposed Zurich's monon, this
reply
affirmation
responds to Defeñdant First Insurance Corporation's ("First affir=ah in
Specialty Specialty")
opposition filed
February 22, 2019 (NYSCEF Dkt. No. 46) and the affirmation in opposinon
filed
by Defeñdsñts Western Beef Retail, Inc. and Westem Beef Properties, Inc. (callectively,
"Westem Beef") on February 22, 2019 (NYSCEF Dkt. No. 48).
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PRELIMINARY STATEMENT
4. In its opposition, First Specialty concedes that Zurich is entitled to the complete
Brown Firm file production provided they are relevant to Zurich’s claims as against First
Specialty, with First Specialty contending they are not.1 For the reasons set forth in Zurich’s
moving papers and below, the documents sought are material and necessary to Zurich’s claims
against First Specialty.
5. Separately, Western Beef argues that Zurich is not entitled to the complete
production of the Brown Firm File because: (1) the documents contained in the Brown Firm File
are not relevant to Zurich’s claims in this action; (2) if those documents are deemed relevant,
those documents are protected by attorney-client privilege held by Western Beef; and (3) the
documents are not subject to New York’s “at issue” doctrine.
6. However, for the reasons set forth in Zurich’s moving papers and as set forth
below, Western Beef and First Specialty failed to meet their burden in establishing that Zurich is
not entitled to the complete unredacted copy of the Brown Firm file. The documents contained
within the Brown Firm file are highly relevant to Zurich’s equitable estoppel claim against
Western Beef and First Specialty. Further, Zurich is entitled to the complete Brown Firm file
under the common interest exception to the attorney-client privilege, and alternatively under
New York’s “at issue” doctrine. For these reasons, Zurich respectfully requests an Order
compelling the Brown Firm to produce its complete file in unredacted format to Zurich within
thirty days of the Order deciding this motion.
1
First Specialty also argues that Zurich’s factual assertions as against First Specialty are not made with the
normal caveats and that they are allegations that Zurich intends to prove in this litigation, as opposed to established
facts. However, all of the factual assertions made in Zurich’s moving papers as to First Specialty’s actions or
inactions in relation to the Garrett Action are asserted with the appropriate caveats.
For example, Zurich states that
“All the while, the Brown Firm reported to Western Beef, to Western Beef’s commercial general liability insurer,
First Specialty Insurance Corporation (“First Specialty”), and/or Western Beef’s third-party claims administrator,
Broadspire US (“Broadspire”).” (See Zurich’s Memorandum of Law filed January 9, 2019 at p. 1) (emphasis
added).
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ADDITIONAL EXHIBITS SUPPORTING THE MOTION
7. The following exhibits are attached hereto.
a. Exhibit “P” is a true copy of Western Beef’s Response to Zurich’s First Set of
Interrogatories dated September 20, 2018.
b. Exhibit “Q” is a true copy of Western Beef’s Response to Zurich’s First Set of
Document Requests dated September 20, 2018.
c. Exhibit “R” is a true copy of a Notice of Expert Witness Disclosure Pursuant
to CPLR 3101(d) served on behalf of Serota and Western Beef by the Brown
Firm in the Garrett Action.
d. Exhibit “S” is a true copy of Western Beef’s Supplemental Response to
Zurich’s Interrogatories dated December 11, 2018.
ARGUMENT
I. The Brown Firm File Documents Are Relevant to Zurich’s Claims in This
Action
8. Zurich met its exceedingly low burden of demonstrating that the documents
sought from the Brown Firm are “material and necessary” to Zurich’s claims and the
Defendants’ defenses in this Action, and thus, discoverable. See Matter of Kapon v. Koch, 23
N.Y.3d. 32, 37 (2014) (the party seeking non-party discovery must only show that the discovery
sought is “material and necessary” to the claims or defenses in the case.).
9. As set forth in Zurich’s moving papers, in this action Zurich asserts that the
doctrine of equitable estoppel barred Western Beef and First Specialty from abandoning Serota
on the actual day trial was to begin in the Garrett Action based on a change of mind. Zurich
maintains its view that because the “character and strategy of the lawsuit could no longer be
altered” when it was asked to assume Serota’s defense on the first day of trial, it has been
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prejudiced as a matter of law. U.S. Fid. & Guar. Co. v. New York Susquehanna & Western Ry &
Co., 275 A.D.2d 977 (4th Dep’t 2000). To the extent that the Court requires a more developed
factual record for Zurich to prove that it was prejudiced by this eleventh-hour decision to support
its equitable estoppel claim, the Brown Firm’s file is the critical source of that information.
Allstate Ins. Co. v. Gross, 27 N.Y.2d 263, 269 (1970) (“Estoppel requires proof that the insured
has suffered prejudice by virtue of the insurer’s conduct.”)
10. It is reasonable to assume, and neither First Specialty nor Western Beef argue
otherwise, that the Brown Firm file includes communications on when and why Western Beef
and/or First Specialty assumed control over Serota’s defense, the actions taken and not taken by
the Brown Firm during discovery, the strategy the Brown Firm implemented, the settlement
recommendations provided by the Brown Firm and positions taken by Western Beef and/or First
Specialty, and the trial strategy.
11. To avoid the disclosure of these documents, Western Beef argues in opposition
that the documents contained in the Brown Firm file “could not have any possible relevance to
Zurich’s claims in this matter.” (See Affirmation of Justin Kelton, Esq. dated February 22, 2019
(“Kelton Aff.”) at ¶ 5). In particular, Western Beef claims that because Serota was found liable
at trial in the Garrett Action, and that the claims against Western Beef were dismissed, “nothing
that Western Beef, FSIC, or the Brown Law Firm did or did not do during the pendency of the
Underlying Action could had [sic] any effect on Serota’s liability.” Id.
12. Western Beef’s contention that the outcome of the Garrett Action was
predetermined from the date suit was filed and that nothing that transpired during that litigation
could have changed the outcome is nonsensical. In reality, the Garrett Action verdict against
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Serota supports Zurich’s equitable estoppel claim against Western Beef and is precisely why the
documents sought are material and necessary to Zurich’s claims in this action.
13. Zurich has the right to discover the pre-trial strategy implemented by Western
Beef’s long-time defense counsel to determine how, if at all, it was prejudiced by this strategy.
Zurich has the right to discover what directions were given by First Specialty and Western Beef
during the case to develop that pre-trial strategy. Zurich has the right to discover what role First
Specialty and Western Beef had in attempting to settle the claim before ever asking Zurich to pay
a dollar, including at the mediation Zurich was not asked to attend. In short, under this State’s
liberal discovery rules, Zurich has the right to know whether the character and strategy of the
lawsuit could have been altered at any point before the first day of trial. See Liberty Ins.
Underwriters, Inc. v. Arch Ins. Co., 61 A.D.3d 482 (1st Dep’t 2009) (holding that insurer was
prejudiced by another insurer’s assumption over the control of the defense without reservation).
14. Accordingly, the materials that all parties concede are within the Brown Firm’s
unredacted file go directly to Zurich’s claims against Western Beef and First Specialty, and thus
are discoverable.
II. Western Beef Failed To Meet Its Burden Of Establishing That The Attorney-
Client Privilege Or Work Product Doctrine Provide Blanket Immunity
15. At Western Beef’s direction, the Brown Firm has withheld or redacted 750 pages
of documents, without providing a privilege log. Because the burden of establishing that the
documents Zurich seeks are shielded by a privilege rests with Western Beef, Spectrum Sys. Intl.
Corp. v Chemical Bank, 78 N.Y.2d 371, 377 (1991), Western Beef was required to come forward
with more than “boilerplate claims of privilege.” New York State Elec. & Gas. Corp. v.
Lexington Ins. Co., 160 A.D.2d 261 (1st Dep’t 1990). This much is required because the
privilege can “constitutes an ‘obstacle’ to the truth-finding process.” Ambac Assur. Corp. v.
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Countrywide Home Loans, Inc., 27 N.Y.3d. 616, 624 (2016); citing Matter of Jacqueline F., 47
N.Y.2d 215, 219 (1979).
16. In its brief opposition, Western Beef does nothing to meet its burden of
establishing that each and every communication withheld by the Brown Firm at its direction fits
within the requirements imposed by CPLR 3101(c) and (d) to qualify for the attorney-client and
work product protections. On this basis alone, the Court should order production of the redacted
and withheld documents. Nab-Tern-Betts v. City of New York, 209 A.D.2d 223 (1st Dep’t 1994)
(finding waiver where privilege log actually provided failed to meet requisite level of details);
Leo v. City of New York, 2011 N.Y. Misc. LEXIS 6738 (Sup. Cty. N.Y. Cnty. 2011) (“Even with
respect to documents claimed to be privileged, the mere assertion of boilerplate and/or untimely
objections without including a detailed privilege log as required by CPLR 3122(b), may
constitute[] a waiver of any objections to disclosure’”)
17. In addition to making no serious effort to particularize its claim of privilege, as
required by the CPLR and case law, Western Beef has also failed to comply with the statutorily-
obligated mandate of providing a privilege log. For this reason too, Western Beef cannot invoke
a privilege to conceal the critical communications. Anonymous v. High School for Envtl. Studies,
32 A.D.3d 353 (1st Dep’t 2006) (holding that defendant’s failure to provide a privilege log as
required by CPLR 3122 resulted in waiver of attorney-client privilege). Accordingly, the Court
should compel the Brown Firm to produce its complete, unredacted file.
III. Zurich Is Entitled To The Joint Defense Documents Under the “Common
Interest” Privilege
18. If the Court addresses the merits of Western Beef’s claims, it should find that
Western Beef failed to meet its heavy burden. Western Beef first argues that the “common
interest” exception is inapplicable because “Zurich was never a client of the Brown Law Firm.”
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(See Kelton Aff. at ¶8). This argument places a restriction on the “common interest” exception
that does not exist. Kindred Healthcare, Inc. v. SAI Global Compliance, Inc., 2019 NY Slip Op
01164 (1st Dep’t 2019) (common interest doctrine applies to communications shared within non-
clients). In like circumstances, and in the absence of an attorney-client relationship, the First
Department has repeatedly ordered production of produce attorney-client documents. See
Diamond State Insurance Co. v. Utica First Insurance Co., 37 A.D.3d 160 (1st Dep’t 2007)
(compelling insurer which allegedly acted unreasonably to produce attorney-client documents);
Zurich Insurance Co. v. State Farm Mutual Auto Insurance Co., 137 A.D.2d 401 (1st Dep’t
1998) (holding that because insurer controlling the defense has a duty of good faith to other
insurers of a mutual insured, “the insurer may not use the attorney-client privilege or work
produce privilege as a shield to prevent disclosure which is relevant to the insurer’s”
unreasonable conduct).
19. Moreover, Zurich has argued, and Western Beef has not contested, that there
existed a common interest between Zurich and Serota in the first instance that would have
entitled Zurich to obtain from Serota all communications with defense counsel. Zurich has also
argued, and Western Beef has not contested, that by virtue of Zurich’s relationship with Serota,
and the Brown Firm’s joint representation of Serota and Western Beef, that there existed a
common interest Western Beef and Zurich to defend against and defeat the Garrett Action. Thus,
there is no dispute that the parties’ interests were aligned at the time the documents or
communications Zurich seeks were created. Accordingly, it is immaterial that Zurich was not the
Brown Firm’s client.
20. Western Beef’s next attempt to conceal the joint representation documents from
Zurich is its misguided contention that the “common interest” doctrine does not apply because
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Zurich has not established that the Brown Firm represented Western Beef and Serota jointly, but
rather, that “the Brown Law Firm, for a time, had two clients.”
21. If it is true that the same attorney at the Brown Firm represented these entities
individually in the same litigation against the same plaintiff, as opposed to jointly, why has
Western Beef produced no documents to support this position? The publicly filed documents
answer this question. They show that the Brown Firm did in fact jointly represent Serota and
Western Beef in the Garrett Action until December 5, 2017. For example, the Brown Firm filed
a joint answer on behalf of both Serota and Western Beef in the Garrett Action. (See Exhibit C).
In that answer, Western Beef and Serota are jointly referred to as “Defendant” and the answer
makes no distinction between the two entities. (See id.). The answer asserts affirmative defenses
on behalf of Western Beef and Serota jointly and does not raise any separate defenses for either
entity. (See id.). Further, the Brown Firm filed a motion on behalf of both defendants, with no
distinction between the two parties for all substantive purposes, served joint discovery responses,
and retained and disclosed an expert on behalf of both entities. (See Exhibit M; Exhibit R).
Thus, all information provided to date demonstrates that the Western Beef and Serota were
jointly represented by the Brown Firm in relation to the Garrett Action, and Western Beef has
failed to meet its burden of establishing otherwise. See Royal Indem. Co. v. Salomon Smith
Barney, Inc., 2004 N.Y. Slip. Op. 50739(U) (Sup. Ct. N.Y. Cnty. 2004) (compelling insured and
its primary insurers to produce attorney-client documents to insurer in excess position because
common interest existed).
22. While neither logic nor publicly filed documentary evidence support Western
Beef’s position, most troubling is that Western Beef continues to utilize its own non-disclosure
as a sword and a shield by arguing a point that Zurich cannot disprove without the documents
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Western Beef is preventing the Brown Firm from disclosing. That is to say, Western Beef
suggests the Brown Firm separately represented Western Beef and Serota but seeks to prevent
Zurich from obtaining the documents to confirm that point. Courts, unsurprisingly, prohibit
litigants from invoking the “sword-and-shield” doctrine in this manner. United States v. Doe, 219
F.3d 175, 182 (2d Cir. 2000) (a party cannot “affirmatively rely on privileged communications to
support its claim or defense and then shield the underlying communications from scrutiny by the
opposing party.”).
23. Finally, Western Beef misunderstands Zurich’s reliance on the cooperation
clause. Zurich does not argue that Western Beef has an obligation under the Zurich Policy to
allow Zurich access to the unredacted copy of the Brown Firm file. Rather, Serota had a
contractual obligation to produce the requested Brown Firm file to Zurich, if it were in Serota’s
possession, pursuant to the cooperation clause. In the normal course, Serota or the firm
defending it would provide the documents to Zurich since Zurich has the right and duty to defend
Serota. But Western Beef’s assumption of Serota’s defense through the Brown Firm and that
firm’s failure to report to Serota deprived Serota of that documentation. Since Serota lacks that
documentation, Zurich cannot demand from Serota what it does not have and thus seeks to obtain
the documents the Brown Firm would have provided in the normal course to Serota from the
Brown Firm.2 Thus, Western Beef cannot shield from Zurich the documents Serota and the
Brown Firm were required to provide to Zurich.
24. For foregoing reasons, Zurich is entitled to all documents created, produced, or
exchanged between the Brown Firm and Serota, Western Beef, First Specialty, and Broadspire
during the time the Brown Firm jointly represented Serota and Western Beef.
2
Western Beef suggests that Serota’s absence from this suit is somehow fatal to Zurich’s requests, but Serota has
no stake in the outcome here since Zurich defended and indemnified Serota after Western Beef and/or First
Specialty abandoned it.
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IV. The Brown Firm Must Disclose a Complete, Unredacted Copy of its File
Pursuant to the “At Issue” Doctrine
25. Western Beef’s opposition only highlights Zurich’s entitlement to the complete
Brown Firm file pursuant to New York’s “at issue” doctrine. Western Beef’s and/or First
Specialty’s position in this case is that neither agreed to defend or indemnify Serota in relation to
the Garrett Action at any time so by implication, the Brown Firm unilaterally decided to jointly
represent Serota from start, through discovery, at mediation, and up to trial all without ever
telling either Western Beef and First Specialty. If Western Beef and First Specialty maintain this
specious position, Zurich is certainly entitled to a complete, unredacted copy of the Brown
Firm’s file pursuant to the “at issue” doctrine.
26. Contrary to Western Beef’s assertion, “at issue” waiver does not only apply to
documents maintained by a party initiating litigation. “’At issue’ waiver occurs where a party
affirmatively places the subject matter of its own privileged communication at issue in litigation,
so that invasion of the privilege is required to determine the validity of a claim or defense of the
party asserting the privilege, and application of the privilege would deprive the adversary of vital
information.” Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d. 56, 63 (1st
Dep’t 2007). New York courts have applied the “at issue” doctrine to allow plaintiffs to obtain
certain documents in a defendant’s possession due to the affirmative positions taken by a
defendant in response to a plaintiff’s claims. See Royal Indem. Co. v. Salomon Smith Barney,
Inc., 2004 N.Y. Slip. Op. 50739(U), *9 (Sup. Ct. N.Y. Cnty. 2004) (attorney-client privileged
documents sought by plaintiff insurers from defendant insureds were discoverable pursuant to
the “at issue” doctrine because of affirmative position defendants maintained in defense of
plaintiffs’ claims); DH Holdings Corp. v. Marconi Corp. PLC, 10 Misc. 3d. 530, 531 (Sup. Ct.
N.Y. Cnty. 2005).
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27. Western Beef further argues that it has not undertaken any affirmative action that
would put its allegedly attorney-client privileged communications “at issue.” Not so. Western
Beef’s defense to Zurich’s claims for additional insured coverage and equitable estoppel is that it
never agreed to defend or indemnity Serota in any instance. In response to certain of Zurich’s
Interrogatories requesting information regarding the assumption of Serota’s defense in the
Garrett Action, Western Beef provided general objections and responded as follows:
Interrogatory No. 14
State the reason(s) why You, Broadspire and/or First Specialty assumed the defense
and/or indemnity of Serota in the Underlying Action.
Response to Interrogatory No. 14
Defendants object to this Interrogatory to the extent that it requests information
outside the scope permitted by Rule 11-a of the Commercial Rules, 202.70 et seq.,
pursuant to which “interrogatories are limited to the following topics: name of witnesses
with knowledge of information material and necessary to the subject matter of the action,
computation of each category of damage alleged, and the existence, custodian, location
and general description of material and necessary documents, including pertinent
insurance agreements, and other physical evidence.”
In addition, Defendants object to this Interrogatory to the extent that it presumes
that Western Beef, Broadspire and/or First Specialty assumed the defense and/or
indemnity of Serota in the Underlying Action. Subject to and without waiving the
foregoing objections and the general objections, Defendants state, upon information and
belief, that no assumptions occurred.
(See Exhibit P, Interrogatory No. 14; See also Interrogatory Nos. 15, 16, 17, 18 and 19).
28. Similarly, in response to Zurich’s document requests, Western Beef stated that
Western Beef, Broadspire and/or First Specialty did not assume Serota’s defense in the Garrett
Action:
REQUEST NO. 14:
Copies of all documents relating to Your, Broadspire’s, and/or First Specialty’s
decision to assume the defense and/or indemnity of Serota in the Underlying
Action.
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RESPONSE:
Defendants object to this Demand to the extent that it presumes that any
tender or assumption occurred. Subject to, without waiver of, and as limited by
the foregoing objections and the General Objections, Defendants state, upon
information and belief, that no such tender or assumption occurred and,
accordingly, Defendants are not in possession of documents responsive to this
demand.
(See Exhibit Q, Request No. 14). Western Beef responded to other of Zurich’s document
requests similarly, by denying that Western Beef ever assumed Serota’s defense. (See Exhibit Q,
Request Nos. 15, 18 and 19).
29. If it is true that Western Beef and/or First Specialty never agreed to defend and/or
indemnify Serota in the Garrett Action, then Zurich is entitled to documents and communications
reflecting the decision-making relating to the appointment of the Brown Firm to jointly represent
Serota and Western Beef. Zurich is also entitled to documents and communications reflecting
Western Beef decision to pay for Serota’s defense costs and to retain the Brown Firm in relation
to Serota’s defense.3 Western Beef cannot argue that they never agreed to defend or indemnify
Serota in the Garrett Action without a reservation of rights, and in the same instance refuse to
produce documents and communications pertaining to their retention of the Brown Firm on
behalf of Serota and their control of Serota’s defense for twenty months. See Royal, 2004 N.Y.
Slip. Op. 50739(U), *9-10.
30. Likewise, Western Beef cannot claim they never defended Serota, despite
Western Beef’s payment and direction of Serota’s defense in the Garrett Action, and refuse to
allow the Brown Firm to produce the defense file, which likely contains communications
regarding the actions taken and not taken by the Brown Firm during discovery, the strategy the
3
Western Beef stated in its Supplemental Interrogatory Responses that Western Beef incurred $52,243.45 in
connection with Western Beef’s defense in the Garrett Action, and that this amount was not paid in connection with
Serota’s defense in the Garrett Action. (See Exhibit S, Interrogatory No. 29). Though, if Western Beef did not pay
the Brown Firm’s legal invoices in connection with Serota’s defense in the Garrett Action, Zurich is entitled to know
who did.
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Brown Firm implemented, the settlement recommendations provided by the Brown Firm and
positions taken by Western Beef and/or First Specialty, and the trial strategy.
CONCLUSION
WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to
CPLR § 3124 compelling the Brown Firm to fully comply with Zurich’s Document Subpoena
Request; and for such other and further relief as this Court may deem just and proper together
with the costs of this motion.
Dated: New York, New York
March 7, 2019
By: s/ Lindsey LaFond
Lindsey LaFond, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ZURICH AMERICAN INSURANCE COMPANY, Index No.: 652336/2018 Plaintiff, -against- REPLY AFFIRMATION IN FURTHER SUPPORT OF FIRST SPECIALTY INSURANCE ZURICH'S MOTION TO CORPORATION, WESTERN BEEF INC. and WESTERN COMPEL RETAIL, BEEF PROPERTIES, INC. Defendants. Lindsey LaFond, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following, under the penalties of perjury and pursuañt to CPLR § 2106: 1. I am an Associate with the firm of Coughliñ Duffy LLP, attorney for Plaintiff Zurich American Insurance Company ("Zurich") and, as such, am fully familiar with the facts and circumstances set forth herein, with the source of my knowledge being the records of Zurich maintained by our office. 2. I submit this reply affirmation in further support of Zurich's menon pur:raañt to CPLR § 3124 for an Order compelling Non-Party Robert E. Brown, P.C. (the "Brown Firm") to fully respond to Zurich's Document Subpoena Request; and for such other and further relief as this Court may deem just and proper together with the costs of this motion. 3. Because the Brown Firm has not opposed Zurich's monon, this reply affirmation responds to Defeñdant First Insurance Corporation's ("First affir=ah in Specialty Specialty") opposition filed February 22, 2019 (NYSCEF Dkt. No. 46) and the affirmation in opposinon filed by Defeñdsñts Western Beef Retail, Inc. and Westem Beef Properties, Inc. (callectively, "Westem Beef") on February 22, 2019 (NYSCEF Dkt. No. 48). 1554998 1 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 PRELIMINARY STATEMENT 4. In its opposition, First Specialty concedes that Zurich is entitled to the complete Brown Firm file production provided they are relevant to Zurich’s claims as against First Specialty, with First Specialty contending they are not.1 For the reasons set forth in Zurich’s moving papers and below, the documents sought are material and necessary to Zurich’s claims against First Specialty. 5. Separately, Western Beef argues that Zurich is not entitled to the complete production of the Brown Firm File because: (1) the documents contained in the Brown Firm File are not relevant to Zurich’s claims in this action; (2) if those documents are deemed relevant, those documents are protected by attorney-client privilege held by Western Beef; and (3) the documents are not subject to New York’s “at issue” doctrine. 6. However, for the reasons set forth in Zurich’s moving papers and as set forth below, Western Beef and First Specialty failed to meet their burden in establishing that Zurich is not entitled to the complete unredacted copy of the Brown Firm file. The documents contained within the Brown Firm file are highly relevant to Zurich’s equitable estoppel claim against Western Beef and First Specialty. Further, Zurich is entitled to the complete Brown Firm file under the common interest exception to the attorney-client privilege, and alternatively under New York’s “at issue” doctrine. For these reasons, Zurich respectfully requests an Order compelling the Brown Firm to produce its complete file in unredacted format to Zurich within thirty days of the Order deciding this motion. 1 First Specialty also argues that Zurich’s factual assertions as against First Specialty are not made with the normal caveats and that they are allegations that Zurich intends to prove in this litigation, as opposed to established facts. However, all of the factual assertions made in Zurich’s moving papers as to First Specialty’s actions or inactions in relation to the Garrett Action are asserted with the appropriate caveats. For example, Zurich states that “All the while, the Brown Firm reported to Western Beef, to Western Beef’s commercial general liability insurer, First Specialty Insurance Corporation (“First Specialty”), and/or Western Beef’s third-party claims administrator, Broadspire US (“Broadspire”).” (See Zurich’s Memorandum of Law filed January 9, 2019 at p. 1) (emphasis added). 1554998 2 2 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 ADDITIONAL EXHIBITS SUPPORTING THE MOTION 7. The following exhibits are attached hereto. a. Exhibit “P” is a true copy of Western Beef’s Response to Zurich’s First Set of Interrogatories dated September 20, 2018. b. Exhibit “Q” is a true copy of Western Beef’s Response to Zurich’s First Set of Document Requests dated September 20, 2018. c. Exhibit “R” is a true copy of a Notice of Expert Witness Disclosure Pursuant to CPLR 3101(d) served on behalf of Serota and Western Beef by the Brown Firm in the Garrett Action. d. Exhibit “S” is a true copy of Western Beef’s Supplemental Response to Zurich’s Interrogatories dated December 11, 2018. ARGUMENT I. The Brown Firm File Documents Are Relevant to Zurich’s Claims in This Action 8. Zurich met its exceedingly low burden of demonstrating that the documents sought from the Brown Firm are “material and necessary” to Zurich’s claims and the Defendants’ defenses in this Action, and thus, discoverable. See Matter of Kapon v. Koch, 23 N.Y.3d. 32, 37 (2014) (the party seeking non-party discovery must only show that the discovery sought is “material and necessary” to the claims or defenses in the case.). 9. As set forth in Zurich’s moving papers, in this action Zurich asserts that the doctrine of equitable estoppel barred Western Beef and First Specialty from abandoning Serota on the actual day trial was to begin in the Garrett Action based on a change of mind. Zurich maintains its view that because the “character and strategy of the lawsuit could no longer be altered” when it was asked to assume Serota’s defense on the first day of trial, it has been 1554998 3 3 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 prejudiced as a matter of law. U.S. Fid. & Guar. Co. v. New York Susquehanna & Western Ry & Co., 275 A.D.2d 977 (4th Dep’t 2000). To the extent that the Court requires a more developed factual record for Zurich to prove that it was prejudiced by this eleventh-hour decision to support its equitable estoppel claim, the Brown Firm’s file is the critical source of that information. Allstate Ins. Co. v. Gross, 27 N.Y.2d 263, 269 (1970) (“Estoppel requires proof that the insured has suffered prejudice by virtue of the insurer’s conduct.”) 10. It is reasonable to assume, and neither First Specialty nor Western Beef argue otherwise, that the Brown Firm file includes communications on when and why Western Beef and/or First Specialty assumed control over Serota’s defense, the actions taken and not taken by the Brown Firm during discovery, the strategy the Brown Firm implemented, the settlement recommendations provided by the Brown Firm and positions taken by Western Beef and/or First Specialty, and the trial strategy. 11. To avoid the disclosure of these documents, Western Beef argues in opposition that the documents contained in the Brown Firm file “could not have any possible relevance to Zurich’s claims in this matter.” (See Affirmation of Justin Kelton, Esq. dated February 22, 2019 (“Kelton Aff.”) at ¶ 5). In particular, Western Beef claims that because Serota was found liable at trial in the Garrett Action, and that the claims against Western Beef were dismissed, “nothing that Western Beef, FSIC, or the Brown Law Firm did or did not do during the pendency of the Underlying Action could had [sic] any effect on Serota’s liability.” Id. 12. Western Beef’s contention that the outcome of the Garrett Action was predetermined from the date suit was filed and that nothing that transpired during that litigation could have changed the outcome is nonsensical. In reality, the Garrett Action verdict against 1554998 4 4 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 Serota supports Zurich’s equitable estoppel claim against Western Beef and is precisely why the documents sought are material and necessary to Zurich’s claims in this action. 13. Zurich has the right to discover the pre-trial strategy implemented by Western Beef’s long-time defense counsel to determine how, if at all, it was prejudiced by this strategy. Zurich has the right to discover what directions were given by First Specialty and Western Beef during the case to develop that pre-trial strategy. Zurich has the right to discover what role First Specialty and Western Beef had in attempting to settle the claim before ever asking Zurich to pay a dollar, including at the mediation Zurich was not asked to attend. In short, under this State’s liberal discovery rules, Zurich has the right to know whether the character and strategy of the lawsuit could have been altered at any point before the first day of trial. See Liberty Ins. Underwriters, Inc. v. Arch Ins. Co., 61 A.D.3d 482 (1st Dep’t 2009) (holding that insurer was prejudiced by another insurer’s assumption over the control of the defense without reservation). 14. Accordingly, the materials that all parties concede are within the Brown Firm’s unredacted file go directly to Zurich’s claims against Western Beef and First Specialty, and thus are discoverable. II. Western Beef Failed To Meet Its Burden Of Establishing That The Attorney- Client Privilege Or Work Product Doctrine Provide Blanket Immunity 15. At Western Beef’s direction, the Brown Firm has withheld or redacted 750 pages of documents, without providing a privilege log. Because the burden of establishing that the documents Zurich seeks are shielded by a privilege rests with Western Beef, Spectrum Sys. Intl. Corp. v Chemical Bank, 78 N.Y.2d 371, 377 (1991), Western Beef was required to come forward with more than “boilerplate claims of privilege.” New York State Elec. & Gas. Corp. v. Lexington Ins. Co., 160 A.D.2d 261 (1st Dep’t 1990). This much is required because the privilege can “constitutes an ‘obstacle’ to the truth-finding process.” Ambac Assur. Corp. v. 1554998 5 5 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 Countrywide Home Loans, Inc., 27 N.Y.3d. 616, 624 (2016); citing Matter of Jacqueline F., 47 N.Y.2d 215, 219 (1979). 16. In its brief opposition, Western Beef does nothing to meet its burden of establishing that each and every communication withheld by the Brown Firm at its direction fits within the requirements imposed by CPLR 3101(c) and (d) to qualify for the attorney-client and work product protections. On this basis alone, the Court should order production of the redacted and withheld documents. Nab-Tern-Betts v. City of New York, 209 A.D.2d 223 (1st Dep’t 1994) (finding waiver where privilege log actually provided failed to meet requisite level of details); Leo v. City of New York, 2011 N.Y. Misc. LEXIS 6738 (Sup. Cty. N.Y. Cnty. 2011) (“Even with respect to documents claimed to be privileged, the mere assertion of boilerplate and/or untimely objections without including a detailed privilege log as required by CPLR 3122(b), may constitute[] a waiver of any objections to disclosure’”) 17. In addition to making no serious effort to particularize its claim of privilege, as required by the CPLR and case law, Western Beef has also failed to comply with the statutorily- obligated mandate of providing a privilege log. For this reason too, Western Beef cannot invoke a privilege to conceal the critical communications. Anonymous v. High School for Envtl. Studies, 32 A.D.3d 353 (1st Dep’t 2006) (holding that defendant’s failure to provide a privilege log as required by CPLR 3122 resulted in waiver of attorney-client privilege). Accordingly, the Court should compel the Brown Firm to produce its complete, unredacted file. III. Zurich Is Entitled To The Joint Defense Documents Under the “Common Interest” Privilege 18. If the Court addresses the merits of Western Beef’s claims, it should find that Western Beef failed to meet its heavy burden. Western Beef first argues that the “common interest” exception is inapplicable because “Zurich was never a client of the Brown Law Firm.” 1554998 6 6 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 (See Kelton Aff. at ¶8). This argument places a restriction on the “common interest” exception that does not exist. Kindred Healthcare, Inc. v. SAI Global Compliance, Inc., 2019 NY Slip Op 01164 (1st Dep’t 2019) (common interest doctrine applies to communications shared within non- clients). In like circumstances, and in the absence of an attorney-client relationship, the First Department has repeatedly ordered production of produce attorney-client documents. See Diamond State Insurance Co. v. Utica First Insurance Co., 37 A.D.3d 160 (1st Dep’t 2007) (compelling insurer which allegedly acted unreasonably to produce attorney-client documents); Zurich Insurance Co. v. State Farm Mutual Auto Insurance Co., 137 A.D.2d 401 (1st Dep’t 1998) (holding that because insurer controlling the defense has a duty of good faith to other insurers of a mutual insured, “the insurer may not use the attorney-client privilege or work produce privilege as a shield to prevent disclosure which is relevant to the insurer’s” unreasonable conduct). 19. Moreover, Zurich has argued, and Western Beef has not contested, that there existed a common interest between Zurich and Serota in the first instance that would have entitled Zurich to obtain from Serota all communications with defense counsel. Zurich has also argued, and Western Beef has not contested, that by virtue of Zurich’s relationship with Serota, and the Brown Firm’s joint representation of Serota and Western Beef, that there existed a common interest Western Beef and Zurich to defend against and defeat the Garrett Action. Thus, there is no dispute that the parties’ interests were aligned at the time the documents or communications Zurich seeks were created. Accordingly, it is immaterial that Zurich was not the Brown Firm’s client. 20. Western Beef’s next attempt to conceal the joint representation documents from Zurich is its misguided contention that the “common interest” doctrine does not apply because 1554998 7 7 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 Zurich has not established that the Brown Firm represented Western Beef and Serota jointly, but rather, that “the Brown Law Firm, for a time, had two clients.” 21. If it is true that the same attorney at the Brown Firm represented these entities individually in the same litigation against the same plaintiff, as opposed to jointly, why has Western Beef produced no documents to support this position? The publicly filed documents answer this question. They show that the Brown Firm did in fact jointly represent Serota and Western Beef in the Garrett Action until December 5, 2017. For example, the Brown Firm filed a joint answer on behalf of both Serota and Western Beef in the Garrett Action. (See Exhibit C). In that answer, Western Beef and Serota are jointly referred to as “Defendant” and the answer makes no distinction between the two entities. (See id.). The answer asserts affirmative defenses on behalf of Western Beef and Serota jointly and does not raise any separate defenses for either entity. (See id.). Further, the Brown Firm filed a motion on behalf of both defendants, with no distinction between the two parties for all substantive purposes, served joint discovery responses, and retained and disclosed an expert on behalf of both entities. (See Exhibit M; Exhibit R). Thus, all information provided to date demonstrates that the Western Beef and Serota were jointly represented by the Brown Firm in relation to the Garrett Action, and Western Beef has failed to meet its burden of establishing otherwise. See Royal Indem. Co. v. Salomon Smith Barney, Inc., 2004 N.Y. Slip. Op. 50739(U) (Sup. Ct. N.Y. Cnty. 2004) (compelling insured and its primary insurers to produce attorney-client documents to insurer in excess position because common interest existed). 22. While neither logic nor publicly filed documentary evidence support Western Beef’s position, most troubling is that Western Beef continues to utilize its own non-disclosure as a sword and a shield by arguing a point that Zurich cannot disprove without the documents 1554998 8 8 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 Western Beef is preventing the Brown Firm from disclosing. That is to say, Western Beef suggests the Brown Firm separately represented Western Beef and Serota but seeks to prevent Zurich from obtaining the documents to confirm that point. Courts, unsurprisingly, prohibit litigants from invoking the “sword-and-shield” doctrine in this manner. United States v. Doe, 219 F.3d 175, 182 (2d Cir. 2000) (a party cannot “affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party.”). 23. Finally, Western Beef misunderstands Zurich’s reliance on the cooperation clause. Zurich does not argue that Western Beef has an obligation under the Zurich Policy to allow Zurich access to the unredacted copy of the Brown Firm file. Rather, Serota had a contractual obligation to produce the requested Brown Firm file to Zurich, if it were in Serota’s possession, pursuant to the cooperation clause. In the normal course, Serota or the firm defending it would provide the documents to Zurich since Zurich has the right and duty to defend Serota. But Western Beef’s assumption of Serota’s defense through the Brown Firm and that firm’s failure to report to Serota deprived Serota of that documentation. Since Serota lacks that documentation, Zurich cannot demand from Serota what it does not have and thus seeks to obtain the documents the Brown Firm would have provided in the normal course to Serota from the Brown Firm.2 Thus, Western Beef cannot shield from Zurich the documents Serota and the Brown Firm were required to provide to Zurich. 24. For foregoing reasons, Zurich is entitled to all documents created, produced, or exchanged between the Brown Firm and Serota, Western Beef, First Specialty, and Broadspire during the time the Brown Firm jointly represented Serota and Western Beef. 2 Western Beef suggests that Serota’s absence from this suit is somehow fatal to Zurich’s requests, but Serota has no stake in the outcome here since Zurich defended and indemnified Serota after Western Beef and/or First Specialty abandoned it. 1554998 9 9 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 IV. The Brown Firm Must Disclose a Complete, Unredacted Copy of its File Pursuant to the “At Issue” Doctrine 25. Western Beef’s opposition only highlights Zurich’s entitlement to the complete Brown Firm file pursuant to New York’s “at issue” doctrine. Western Beef’s and/or First Specialty’s position in this case is that neither agreed to defend or indemnify Serota in relation to the Garrett Action at any time so by implication, the Brown Firm unilaterally decided to jointly represent Serota from start, through discovery, at mediation, and up to trial all without ever telling either Western Beef and First Specialty. If Western Beef and First Specialty maintain this specious position, Zurich is certainly entitled to a complete, unredacted copy of the Brown Firm’s file pursuant to the “at issue” doctrine. 26. Contrary to Western Beef’s assertion, “at issue” waiver does not only apply to documents maintained by a party initiating litigation. “’At issue’ waiver occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information.” Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d. 56, 63 (1st Dep’t 2007). New York courts have applied the “at issue” doctrine to allow plaintiffs to obtain certain documents in a defendant’s possession due to the affirmative positions taken by a defendant in response to a plaintiff’s claims. See Royal Indem. Co. v. Salomon Smith Barney, Inc., 2004 N.Y. Slip. Op. 50739(U), *9 (Sup. Ct. N.Y. Cnty. 2004) (attorney-client privileged documents sought by plaintiff insurers from defendant insureds were discoverable pursuant to the “at issue” doctrine because of affirmative position defendants maintained in defense of plaintiffs’ claims); DH Holdings Corp. v. Marconi Corp. PLC, 10 Misc. 3d. 530, 531 (Sup. Ct. N.Y. Cnty. 2005). 1554998 10 10 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 27. Western Beef further argues that it has not undertaken any affirmative action that would put its allegedly attorney-client privileged communications “at issue.” Not so. Western Beef’s defense to Zurich’s claims for additional insured coverage and equitable estoppel is that it never agreed to defend or indemnity Serota in any instance. In response to certain of Zurich’s Interrogatories requesting information regarding the assumption of Serota’s defense in the Garrett Action, Western Beef provided general objections and responded as follows: Interrogatory No. 14 State the reason(s) why You, Broadspire and/or First Specialty assumed the defense and/or indemnity of Serota in the Underlying Action. Response to Interrogatory No. 14 Defendants object to this Interrogatory to the extent that it requests information outside the scope permitted by Rule 11-a of the Commercial Rules, 202.70 et seq., pursuant to which “interrogatories are limited to the following topics: name of witnesses with knowledge of information material and necessary to the subject matter of the action, computation of each category of damage alleged, and the existence, custodian, location and general description of material and necessary documents, including pertinent insurance agreements, and other physical evidence.” In addition, Defendants object to this Interrogatory to the extent that it presumes that Western Beef, Broadspire and/or First Specialty assumed the defense and/or indemnity of Serota in the Underlying Action. Subject to and without waiving the foregoing objections and the general objections, Defendants state, upon information and belief, that no assumptions occurred. (See Exhibit P, Interrogatory No. 14; See also Interrogatory Nos. 15, 16, 17, 18 and 19). 28. Similarly, in response to Zurich’s document requests, Western Beef stated that Western Beef, Broadspire and/or First Specialty did not assume Serota’s defense in the Garrett Action: REQUEST NO. 14: Copies of all documents relating to Your, Broadspire’s, and/or First Specialty’s decision to assume the defense and/or indemnity of Serota in the Underlying Action. 1554998 11 11 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 RESPONSE: Defendants object to this Demand to the extent that it presumes that any tender or assumption occurred. Subject to, without waiver of, and as limited by the foregoing objections and the General Objections, Defendants state, upon information and belief, that no such tender or assumption occurred and, accordingly, Defendants are not in possession of documents responsive to this demand. (See Exhibit Q, Request No. 14). Western Beef responded to other of Zurich’s document requests similarly, by denying that Western Beef ever assumed Serota’s defense. (See Exhibit Q, Request Nos. 15, 18 and 19). 29. If it is true that Western Beef and/or First Specialty never agreed to defend and/or indemnify Serota in the Garrett Action, then Zurich is entitled to documents and communications reflecting the decision-making relating to the appointment of the Brown Firm to jointly represent Serota and Western Beef. Zurich is also entitled to documents and communications reflecting Western Beef decision to pay for Serota’s defense costs and to retain the Brown Firm in relation to Serota’s defense.3 Western Beef cannot argue that they never agreed to defend or indemnify Serota in the Garrett Action without a reservation of rights, and in the same instance refuse to produce documents and communications pertaining to their retention of the Brown Firm on behalf of Serota and their control of Serota’s defense for twenty months. See Royal, 2004 N.Y. Slip. Op. 50739(U), *9-10. 30. Likewise, Western Beef cannot claim they never defended Serota, despite Western Beef’s payment and direction of Serota’s defense in the Garrett Action, and refuse to allow the Brown Firm to produce the defense file, which likely contains communications regarding the actions taken and not taken by the Brown Firm during discovery, the strategy the 3 Western Beef stated in its Supplemental Interrogatory Responses that Western Beef incurred $52,243.45 in connection with Western Beef’s defense in the Garrett Action, and that this amount was not paid in connection with Serota’s defense in the Garrett Action. (See Exhibit S, Interrogatory No. 29). Though, if Western Beef did not pay the Brown Firm’s legal invoices in connection with Serota’s defense in the Garrett Action, Zurich is entitled to know who did. 1554998 12 12 of 13 FILED: NEW YORK COUNTY CLERK 03/07/2019 02:20 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/07/2019 Brown Firm implemented, the settlement recommendations provided by the Brown Firm and positions taken by Western Beef and/or First Specialty, and the trial strategy. CONCLUSION WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to CPLR § 3124 compelling the Brown Firm to fully comply with Zurich’s Document Subpoena Request; and for such other and further relief as this Court may deem just and proper together with the costs of this motion. Dated: New York, New York March 7, 2019 By: s/ Lindsey LaFond Lindsey LaFond, Esq. 1554998 13 13 of 13