ContraVest, Inc., ContraVest Construction Company, and Plantation Point Horizontal Property Regime Owners Association, Inc., as Assignee, PLAINTIFFS, v. Mt. Hawley Insurance Company, DEFENDANT C/A No. 9:15-cv-304-DCN-MGB United States District Court, D. South Carolina, Charleston Division Signed May 18, 2016 Counsel Glynn L. Capell, The Capell Law Firm LLC, Bluffton, SC, Gregory Milam Alford, Alford Law Firm LLC, Hilton Head Island, SC, Jesse Allen Kirchner, Thurmond Kirchner and Timbes PA, Charleston, SC, for Plaintiffs. Andrew Kenneth Epting, Jr., Jaan Gunnar Rannik, Pro Hac Vice, Andrew K. Epting Jr. Law Office, Robert T. Lyles, Jr., Allen Leland DuPre, Lyles and Associates LLC, Charleston, SC, Michelle N. Endemann, Clarkson Walsh and Coulter PA, Mount Pleasant, SC, for Defendant. Baker, Mary G., United States Magistrate Judge ORDER *1 This case is a dispute over insurance coverage following a prior lawsuit in state court (“the underlying litigation”). Plantation Point Horizontal Property Regime Owners Association (“PPHPROA”) brings this suit as an assignee of ContraVest, Inc. and ContraVest Construction Company (collectively “ContraVest”) against Mt. Hawley, an excess insurance carrier for ContraVest. This court has been referred the following three motions by the district court: Plaintiffs’ Motion to Quash and Request for Protective Order and Stay (Dkt. No. 46), Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 55), Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 56). (See Dkt. Nos. 47; 63.) Two telephonic hearings were held on May 10, 2016, before the undersigned. Present on the call on behalf of the Plaintiffs were Mr. Alford and Mr. Kirchner along with Tom Williams, of counsel in Mr. Alford's firm. Mr. Epting was present on behalf of Mt. Hawley. Portions of the motions now before the court were ruled on previously in this court's Order dated December 10, 2015 (Dkt. No. 54) and in spoken orders from the bench in hearings held on December 8, 2015 (Dkt. No. 52) and March 23, 2016 (Dkt. No. 78). Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 55) In response to a subpoena from Mt. Hawley, Thurmond Kirchner Timbes & Yelverton, PA (“TKTY”) produced documents and a privilege log to Mt. Hawley. (See Dkt. No. 55.) Mt. Hawley objected to multiple items on the privilege log and requested the court conduct an in camera review of the items. (Dkt. 55-1.) This court previously ruled on all of Mt. Hawley's objections on the record on March 23, 2016, except for the insurance coverage spreadsheets. (Dkt. No. 78.) The spreadsheets are listed as item numbers 9-12 on TKTY's privilege log. (Dkt. No. 74-1 at 1.) TKTY argues that the spreadsheets are attorney work product. At the hearing held on May 10, 2016, Mr. Kirchner of TKTY represented to the court that the spreadsheets were prepared by his paralegal in anticipation of the underlying litigation. Mr. Kirchner stated that all of the information and insurance policies used by his paralegal to prepare the spreadsheets have been produced to Mt. Hawley in discovery. Rule 26(b)(3) of the Federal Rules of Civil Procedure states: 3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Fed. R. Civ. P. 26. The insurance coverage spreadsheets were prepared by TKTY in anticipation of litigation. Mt. Hawley has not shown a substantial need for the spreadsheets because it is uncontroverted that Mt. Hawley has received all of the policies and information used to create the spreadsheets. Mt. Hawley argued at the May 10, 2016, hearing that TKTY's client, ContraVest, may have insurance policies that are relevant to this litigation that have not been disclosed to TKTY and therefore never produced. Assuming arguendo that ContraVest has failed to disclose insurance policies, the insurance spreadsheets created by TKTY would not remedy the failure.[1] Therefore, Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 55) as to the insurance coverage spreadsheets, item numbers 9-12 on TKTY's privilege log (Dkt. No. 74-1 at 1), is denied. The spreadsheets are the only outstanding controversy in the Defendant's Motion (Dkt. No. 55). Therefore, the Motion is closed. Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 56) *2 In response to a subpoena from Mt. Hawley, the Alford Law Firm (“Alford”) produced documents and a privilege log to Mt. Hawley. (See Dkt. No. 56.) Mt. Hawley objected to several items on Alford's privilege log and requested the court conduct an in camera review of the items. (Id.) In a letter written to the court on April 29, 2016, Mt. Hawley narrowed the number of items objected to on the privilege log.[2] (Dkt. No. 90.) The Plaintiffs contend that Items 19, 20, 21, 34, 35, 36, 37, 38, and 39 are protected by the attorney client privilege. These items are emails and attachments sent between board members of the PPHPROA and the Plaintiffs’ attorneys. A party asserting the attorney client privilege must show: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or is his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 501-02 (4th Cir. 2011) (internal quotations omitted). Items 19, 20, 21, 34, 35, 36, 37, 38, and 39 were objected to by Mt. Hawley on the basis that they are emails that included a third-party, Stacey Canaday. (See Dkt. No. 90.) On Alford's privilege log, Stacey Canaday is identified as an attorney for Island Glass and Building Products, Inc., a defendant in the underlying litigation. (Dkt. No. 86-3.) At the telephonic hearing on May 10, 2016, Plaintiffs’ counsel stated that Ms. Canaday represented the PPHPROA at the onset of the underlying litigation. Ms. Canaday was involved in the PPHPROA retaining the Alford law firm to represent them in the underlying litigation. Later in that litigation, Ms. Canaday was retained to represent Island Glass and Building Products, Inc., after the PPHPROA waived their conflict of interest. At the time the emails identified as Items 19, 20, 21, 34, 35, 36, 37, 38, and 39 were sent, Ms. Canaday represented PPHPROA, and the communications contain confidential information concerning the underlying case and retaining the Alford firm as counsel. After reviewing these items in camera, this court holds that Items 19, 20, 21, 34, 35, 36, 37, 38, and 39 are protected by the attorney-client privilege. The Plaintiff contends that Items 18 and 22 are protected by the attorney client privilege. (Dkt. No. 86-3.) Items 18 and 22 are emails between board members of the PPHPROA and their property manager, Vicki Bruno. Mt. Hawley objects to the privilege because the emails were not sent or received by an attorney. Having reviewed Items 18 and 22 in camera, both items are emails forwarding communications from attorneys between board members of PPHPROA and Ms. Bruno. At the May 10, 2016 hearing, Plaintiffs’ attorneys represented that Ms. Bruno acts to facilitate communications between board members and conducts the board's business as a board secretary would. This court finds that utilizing Ms. Bruno as a conduit for privileged information between the board of the PPHPROA and their attorneys did not waive the attorney-client privilege. This court holds that Items 18 and 22 are protected by the attorney-client privilege. *3 The Plaintiff contends that Items 62, 67, 68, 95, 96, 125, 136-39, and 180 are attorney work product. (Dkt. No. 86-3.) Mt. Hawley objects. (See Dkt. No. 90.) The court has reviewed these items in camera. All of the items are emails and attachments sent between Plaintiffs’ counsel. The only exception is a portion of Item 96. Item 96 is an email between Plaintiffs’ counsel forwarding an email sent by Mr. Alford to James Weatherholt, an attorney representing the original developer of the buildings at the heart of the underlying litigation. The Plaintiffs have agreed that the email sent by Mr. Alford to Mr. Weatherholt is subject to discovery and not privileged. It is ordered that a redacted version of Item 96 showing the email from Mr. Alford to Mr. Weatherholt be produced. Items 62, 67, 68, 95, 125, 136-39, and 180 are attorney work product not subject to production. Therefore, Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 56) is granted as to a redacted version of Item 96 and denied as to all other items. Plaintiffs’ Motion to Quash and Request for Protective Order with Stay (Dkt. No. 46) The Plaintiffs are seeking to quash the subpoenas issued to depose the Alford Law Firm, PPHPROA, ContraVest, and TKTY. The parties agreed at the May 10, 2016, hearing that PPHPROA and ContraVest would be deposed within 30 days of the hearing. Therefore, the court orders that depositions of PPHPROA and ContraVest be held pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure on or before June 9, 2016 and the motion is moot. The parties agreed that depositions of the law firms would be unnecessary after the parties entered a stipulation at the March 23, 2016 hearing. Therefore, as to Alford and TKTY subpoenas, the motion is moot. The Plaintiff's request for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure is denied. Conclusion The Plaintiffs’ Motion to Quash and Request for Protective Order and Stay (Dkt. No. 46) is DENIED in part and MOOT. Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 55) is DENIED as to the insurance coverage spreadsheets. Defendant's Renewed Motion to Compel Compliance with Subpoenas (Dkt. No. 56) is GRANTED in part and DENIED in part. IT IS SO ORDERED. Footnotes [1] There is no evidence in the record that ContraVest has improperly failed to produce any requested discovery to their counsel or Mt. Hawley. [2] Mt. Hawley agreed in the letter and on the record at the May 10, 2016, hearing that its objections to Items 166-68, 181, 188-91, and 198-207 on Alford's privilege log are resolved. (Dkt. No. 90.)