Westchester Surplus Lines Ins. Co. v. Portofino Masters Homeowners Assoc., Inc.
Westchester Surplus Lines Ins. Co. v. Portofino Masters Homeowners Assoc., Inc.
347 F.R.D. 228 (N.D. Fla. 2024)
July 9, 2024
Cannon, Hope T., United States Magistrate Judge
Summary
The Defendant HOAs served a subpoena on the Cozen O'Connor law firm seeking production of documents related to an Appraisal Award for damages sustained during Hurricane Sally. The Court found that the subpoena invaded the attorney-client, work product, and joint defense privileges, and granted the motions to quash as the information sought could be obtained from other sources and it would be overly burdensome for the Cozen Firm to produce non-privileged documents.
Additional Decisions
WESTCHESTER SURPLUS LINES INS. CO., et al., Plaintiffs,
v.
PORTOFINO MASTERS HOMEOWNERS ASSOC., INC., et al., Defendants
v.
PORTOFINO MASTERS HOMEOWNERS ASSOC., INC., et al., Defendants
Case No. 3:23cv453-MCR-HTC
United States District Court, N.D. Florida, Pensacola Division
Signed July 09, 2024
Counsel
Alexandra Jordan Schultz, Cozen O'Connor, West Palm Beach, FL, Juan Pablo Garrido, Cozen O'Connor, Miami, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiffs Westchester Surplus Lines Insurance Company, Arch Specialty Insurance Company, Axis Surplus Insurance Company, Evanston Insurance Company, Aspen Specialty Insurance Company, Maxum Indemnity COMPANY.Taylor Layne Davis, Clyde & Co. U.S. LLP, Atlanta, GA, for Plaintiff Endurance American Specialty Insurance Company.
Jack Roy Reiter, Jordan Scott Kosches, Gray Robinson PA, Miami, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff Colony Insurance Company.
Brian Patrick Henry, Rolfes Henry Co., LPA, Bradenton, FL, David Crawford Bibb, Rolfes Henry Co., LPA, Orlando, FL, Hagen P. Brody, Rolfes Henry Co., LPA, Sarasota, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiffs Independent Specialty Insurance Company, Lloyds of London.
Brian Patrick Henry, Rolfes Henry Co., LPA, Bradenton, FL, David Crawford Bibb, Rolfes Henry Co., LPA, Orlando, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff Interstate Fire & Casualty Company.
Aaron Phillip Konstam, Bryan Matthew Walsh, Kennedys CMK LLP, Miami, FL, Eric Andrew Hiller, Hinshaw & Culbertson LLP, Coral Gables, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff James River Insurance Company.
Aaron Phillip Konstam, Kennedys CMK LLP, Miami, FL, Elizabeth Salinas, Mozley Finlayson & Loggins LLP, Orlando, FL, Sarah Mackimm, Pro Hac Vice, Wayne David Taylor, Mozley Finlayson & Loggins LLP, Atlanta, GA, for Plaintiff Landmark American Insurance Company.
Aaron Phillip Konstam, Kennedys CMK LLP, Miami, FL, Amanda Dawn Proctor, David Houston McConnell, III, Carlton Fields PA, Atlanta, GA, Heidi Hudson Raschke, Carlton Fields PA, Tampa, FL, Madison Elizabeth Wahler, Carlton Fields PA, Orlando, FL, for Plaintiff Homeland Insurance Company of New York.
Charles Franklin Beall, Jr., Moore Hill & Westmoreland PA, Pensacola, FL, Edward P. Fleming, Matthew Adam Bush, Aaron Tero McCurdy, McDonald Fleming LLP, Pensacola, FL, for Defendant Portofino Master Homeowners Association Inc.
Charles Franklin Beall, Jr., Moore Hill & Westmoreland PA, Pensacola, FL, Edward P. Fleming, Matthew Adam Bush, Aaron Tero McCurdy, McDonald Fleming LLP, Pensacola, FL, Lindsey Miller-Hailey, Tallahassee, FL, for Defendants Portofino Tower One Homeowners Association at Pensacola Beach Inc., Portofino Tower Two Homeowners Association at Pensacola Beach Inc., Portofino Tower Three Homeowners Association at Pensacola Beach Inc., Portofino Tower Four Homeowners Association at Pensacola Beach Inc., Portofino Tower Five Homeowners Association at Pensacola Beach Inc.
Cannon, Hope T., United States Magistrate Judge
ORDER
*1 This matter is before the Court on two motions to quash a subpoena the Defendant Homeowner Associations[1] served on the Cozen O'Connor law firm (the “Cozen Firm”). The motions were filed by those Plaintiff Insurers represented by the Cozen Firm (referred to as the “Cozen Plaintiffs”),[2] Doc. 184, and those Plaintiff Insurers who hold the excess layer of coverages and who are not represented by the Cozen Firm (referred to as the “Non-Cozen Excess Insurers”)[3] (collectively referred to as the “Moving Insurers”), Doc. 185. Upon consideration of the motions, the Defendant HOAs’ response, Doc. 188, the Moving Insurers’ reply, Doc. 192, and after the benefit of oral argument, the Court finds the motions should be GRANTED.
I. BACKGROUND
As detailed in the Court's prior discovery orders, this action involves a dispute over an Appraisal Award determining the amount of damages sustained by the Portofino Towers during Hurricane Sally.[4] The Plaintiffs are thirteen insurers[5] who provided different layers of coverages (primary and excess) to the Defendant HOAs on the Portofino Towers. The Plaintiff Insurers seek to challenge the Appraisal Award on several grounds, including that coverage is void because of fraud, failure to cooperate, and, for the excess layer insurers, failure to give notice or make an appraisal demand.
On April 22, 2024, the Defendant HOAs served a subpoena on the Cozen Firm seeking the production of the following: (1) all draft declarations provided to the appraiser, Pat Lewis (“Lewis”), or his company, including transmittal emails or letters; (2) copies of the Cozen Firm's invoices to the Plaintiff Insurers; (3) copies of payments made to the Cozen Firm from the Plaintiff Insurers; (4) copies of the Cozen Firm's communications with Lewis; (5-16) copies of the Cozen Firm's communications with the Cozen Plaintiffs and the Non-Cozen Excess Insurers; (17) copies of the Cozen Firm's communications with third-party wholesale broker, AmWins; (18) copies of the Cozen Firm's communications with third-party administrators; (19) copies of the Cozen Firm's communications with engineering firm, J.S. Held; (20) copies of documents to the Plaintiff Insurers regarding payments to Lewis, his company, or J.S. Held; (21) copies of the Cozen Firm's communications with adjuster Jeff Hellman (“Hellman”) or McLaren Young International; and (22) copies of notices to Arthur J. Gallagher. For most requests, the HOAs seek documents from December 11, 2020, to January 2024, related to “the Portofino Appraisal claim, and/or Portofino Appraisal, and the subsequent pending litigation in the above-styled action.” See Doc. 184-1.
*2 The Moving Insurers argue the subpoenas invade the attorney-client, work product, and joint defense privileges, that the information sought can be obtained elsewhere, and that it would be overly burdensome for the Cozen Firm, which has represented one or more of the Plaintiff Insurers since the appraisal demand was made in December 2020, to have to go through their legal files to produce non-privileged responsive documents and produce a privilege log or redacted documents.
The Defendant HOAs, on the other hand, argue the information sought is relevant to the Plaintiff Insurers’ defenses, namely their claim that they did not receive notice of the claim and did not participate in the appraisal process. The Defendant HOAs argue that the Plaintiff Insurers’ adjuster, Hellman, acting at the direction of the Cozen Firm, or the Cozen Firm, determined when and to whom the HOAs’ agent, Arthur J. Gallagher, was to send notices of loss.[6] They also argue the Plaintiff Insurers have placed their communications with the Cozen Firm at issue; and that even if the information sought can be obtained from the Plaintiff Insurers or other third parties, that does not preclude them from seeking the same information from the Cozen Firm.
II. DISCUSSION
The issuance of a subpoena to a third party is governed by Rule 45. See Fed. R. Civ. P. 45. As with any discovery in a civil matter, the information sought in the subpoena must be relevant to the case. See Nat'l Staffing Sols., Inc. v. Sanchez, 2022 WL 19355853, at *2 (M.D. Fla. Sept. 12, 2022) (“The scope of discovery under Rule 45 is the same as the scope of discovery under Federal Rule of Civil Procedure 26.”). However, even when the information sought is relevant, a court may quash or modify a subpoena which “requires disclosure of privileged or other protected matter.” Fed. R. Civ. P. 45(d)(3)(iii); Florida v. Byrd, 674 F. Supp. 3d 1097, 1102-03 (N.D. Fla. 2023). In other words, “the mere relevance of those documents does not override the privilege.” Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 300 F.R.D. 590, 594 (S.D. Fla. 2014) (quoting Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021, 1023 (Fla. 4th DCA 1998)).
The attorney-client privilege is the oldest privilege for confidential communications known to the common law. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The purpose of the attorney-client privilege is to encourage open and complete communication between a client and his attorney by eliminating the possibility of subsequent compelled disclosure of their confidential communications. United States v. Noriega, 917 F.2d 1543, 1550 (11th Cir. 1990). In diversity actions, the state in which the court is located – here, Florida – governs the application of the attorney-client privilege. Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981). Under Florida Statute § 90.502, the attorney-client privilege exists when a client consults “a lawyer with the purpose of obtaining legal services” or with a lawyer who is rendering legal services. 1550 Brickell Assocs. v. Q.B.E. Ins. Co., 253 F.R.D. 697, 699 (S.D. Fla. 2008); Fla. Stat. § 90.502; United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). The burden of establishing the attorney-client privilege rests on the party claiming it. See, e.g., S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994).[7]
*3 The work product privilege is broader than the attorney-client privilege. It is codified in Rule 26 of the Federal Rules of Civil Procedure and protects from disclosure “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative” unless the party makes a showing of substantial need “and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3). The purpose of the work product rule is “to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510–11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).
Like the attorney-client privilege, under Rule 26(b)(3), the party asserting work product protection “bears the burden of establishing its applicability to the case at hand.” In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (citing cases); Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013). The party asserting work-product protection must demonstrate the material at issue “ ‘(1) [is] a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by his representative.’ ” Allied Irish Banks, P.L.C. v. Bank of Am. N.A., 252 F.R.D. 163, 173 (S.D.N.Y. 2008) (quoting Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 105 (S.D.N.Y. 2007)).
As an initial matter, there is no dispute the Cozen Firm has an attorney-client relationship with the Cozen Plaintiffs and has represented one or more of the Cozen Plaintiffs since December 2020 with regard to the Appraisal and this subsequent litigation.[8] There is also no dispute the parties anticipated litigation in December 2020, when the Defendant HOAs submitted their appraisal demand and filed a Civil Remedy Notice against the Plaintiff Insurers. Thus, the Court finds Request Nos. 5-6, 8-9, 14, which seek communications between the Cozen Firm and the Cozen Plaintiffs from December 2020 forward “related to the Portofino Appraisal and the subsequent pending litigation,” Doc. 184-1, are invasive of the attorney-client and work-product privileges. Likewise, Request No. 2, which seeks invoices from the Cozen Firm to its clients also invades the attorney-client and work product privileges to the extent the invoices contain descriptions of the nature of the services rendered. See Grasso v. Grasso, 2015 WL 5159188, at *3 (M.D. Fla. Sept. 2, 2015).
Similarly, the joint defense privilege protects communications between the Cozen Firm and the Non-Cozen Excess Insurers. See Request Nos. 7, 10-13, 15-16. The joint defense or common interest privilege “protects communications between individuals and entities and counsel for another person or company when the communications are ‘part of an on-going and joint effort to set up a common defense strategy.’ In other words, members of the community of interest ‘must share at least a substantially similar legal interest.’ ” Pensacola Firefighters Relief Pension Fund Bd. of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., 3;09-cv-53MCR/MD, 2011 WL 3512180, at *6 (N.D. Fla. July 7, 2011), report and recommendation adopted, 2011 WL 3511069 (N.D. Fla. Aug. 10, 2011) (quoting Robert Bosch LLC v. Pylon Mfg. Corp., 263 F.R.D. 142, 146 (D. Del. 2009)). The party asserting that communications fall within the common interest privilege “must show (1) an agreement (though not necessarily in writing) to cooperate through a common enterprise towards an identical legal strategy; (2) the communications were given in confidence, and the client reasonably understood this; (3) the joint strategy was more than ‘merely the impression of one side.’ ” Id. (citing Denney v. Jenkens & Gilchrist, 362 F. Supp. 2d 407, 415 (S.D.N.Y. 2004)).
*4 Here, the Non-Cozen Excess Insurers’ interests are aligned with those of the Cozen Plaintiffs. Through counsel's representations, the Non-Cozen Excess Insurers contend they have a written joint defense agreement, which they have agreed to produce in camera for the Court's inspection, if necessary. District courts within the Eleventh Circuit recognize the joint defense agreement under the common interest doctrine and apply it to the same range of communications protected under the attorney-client privilege. See Hope for Families & Comm. Serv., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009).
The work-product and attorney-client privileges also apply to communications and documents involving adjuster, Jeff Hellman, after December 11, 2000.[9] See Request Nos. 18, 21. “[I]n general, agents and subordinates working under the direct supervision and control of the attorney are included within the scope of the attorney-client privilege.” Edna Selan Epstein, The Attorney–Client Privilege and the Work–Product Doctrine (4th ed., ABA Section of Litigation). In Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp., 2010 WL 3637958 (S.D. Fla. Sept. 20, 2010), the court specifically addressed whether the attorney-client relationship extends to an adjuster and found that it does. See id. at *4 (holding that if the attorney-client relationship extends to a public relations firm, “then surely communications with an insurer's field adjuster remain privileged”). Indeed, despite arguing that communications with Hellman cannot be privileged because he owes a duty of fairness in handling a claim, the Defendant HOAs also state that Hellman sought counsel from Cozen, was represented by Cozen, was the Insurers’ agent, was paid by the Insurers, reported to and was advised by Cozen, and carried out his duties on behalf of the Insurers. Doc. 188 at 6-7.
The Defendant HOAs, nonetheless, argue they are not seeking to invade any privileges and that not all communications the Cozen Firm has had with its clients, or the Excess Insurers, are for the rendition of legal advice. They contend that the Cozen Firm should be required to produce responsive documents subject to redaction for privileged information and produce a privilege log for responsive documents withheld from production. The Moving Insurers counter that such a requirement is unduly burdensome given the length of the Cozen Firm's involvement in this case; in other words, the log would swallow any production. The Court agrees.
The problem with the Defendant HOAs’ requests is that they are incredibly overbroad and unduly burdensome as written. Instead of narrowly tailoring the subpoenas to specific issues such as notice or allocation of payments, the Defendant HOAs seek all communications from December 2020 regarding the Appraisal and this litigation. The Defendant HOAs’ agreement to limit the production to non-privileged information does not make the requests any less broad or burdensome. Indeed, to comply with the subpoena, the Cozen Firm would have “to sift through [four] years of documents related to the underlying lawsuit, culling out privileged information, and preparing a privilege log as necessary.” McMullen v. GEICO Indem. Co., 2015 WL 2226537, at *8 (S.D. Fla. May 13, 2015) (quashing subpoena to nonparty lawyers). Courts routinely quash such overbroad and unduly burdensome subpoenas in bad-faith insurance litigation. See, e.g., Ford v. Government Employees Ins. Co., No. 1:14-CV-180-MW/GRJ, 2015 WL 11109504 (N.D. Fla. Feb. 2, 2015) (Doc. 35 at 4) (quashing similar subpoenas as overbroad and unduly burdensome).
*5 The Defendant HOAs further argue that to the extent any privileges exist, the Cozen Plaintiffs and the Excess Insurers cannot use the privileges as a shield and a sword when the Cozen Firm injected itself into the Appraisal process. Specifically, the Defendant HOAs argue the Cozen Firm took upon itself the obligation of (1) determining which insurers needed to be notified of the HOAs’ claims and when such notification needed to be provided; (2) determining how payments for the Appraisal expenses would be allocated among the insurers; and (3) indexing a late production of documents provided just prior the Appraisal hearings. The Defendant HOAs, thus, argue that information in the Cozen Firm's files regarding notice to the insurers, the allocation of payments for Appraisal expenses, whom the Cozen Firm represented and when, and the Firm's review of documents produced as part of the Appraisal process is relevant to the insurers’ lack of notice defense, their claim that they did not participate in the Appraisal process, and their argument that they were prejudiced during the Appraisal process by a late production of documents.
First, as discussed above, the 22 requests go beyond those issues. Second, even if the Court were to modify and limit the requests to those specific issues, the Court disagrees that the Moving Insurers are attempting to use any privileged information as a shield and a sword. Generally, the “shield and sword argument” is made in favor of at issue waiver. Under Florida law, an at-issue waiver occurs “when a party ‘raises a claim that will necessarily require proof by way of a privileged communication.’ ” Guarantee Ins. Co., 300 F.R.D. at 593–94 (citing Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d DCA 2006)).
However, the Moving Insurers have not placed their communications with the Cozen Firm at issue in this litigation. To the contrary, the Plaintiff Insurers seek to avoid the Appraisal Award by arguing the Defendant HOAs failed to provide them notice of the damage claim as required under the insurance policies. They are not relying on any notice provided by the Cozen Firm. Instead, they argue the Defendant HOAs, not the Cozen Firm, had a contractual duty under the applicable insurance policies to provide notice to the insurers of a loss.[10] See Master Property Policy, ¶ 44. Thus, whether the Cozen Firm directed or chose to provide notice to the insurers is irrelevant because it does not absolve the Defendant HOAs of their own contractual obligations. A party does not waive the attorney-client privilege simply by bringing or defending a lawsuit.
The same is true with regard to an at-issue waiver of the work-product privilege. For an at-issue waiver to apply, the holder of the privilege must have put the information sought at issue. The Moving Insurers have not done that. Instead, it is the Defendant HOAs who have put the matter at issue; they want to invade the privileges to support their argument that they are off the hook for failing to provide the notice required under the policies because the Cozen Firm took on that obligation. See Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) (finding no at-issue waiver because the party invoking the privilege was not the party who had put the sought after information at issue).
Regardless, information regarding when the Plaintiff Insurers received notice, which Plaintiff Insurers paid for which expenses, when and which Plaintiff Insurers retained the Cozen Firm,[11] and whether the Plaintiff Insurers were prejudiced by a late document production[12] can be obtained from a more convenient source - the Plaintiff Insurers.[13] See Request Nos. 2, 3. Similarly, communications between the Cozen Firm and Lewis,[14] Gallagher, and AmWins[15] can be obtained from those third parties. See Request Nos. 1, 4, 17, 22. Getting this information from the Plaintiff Insurers or the other third parties is less burdensome than having the Cozen Firm sift through its legal files.[16] See Breland v. Levada EF Five, LLC, 2015 WL 12995098, at *6 (S.D. Ala. Apr. 30, 2015) (whether information is obtainable from another convenient source is a factor the Court cannot ignore in determining whether to modify or quash a subpoena) (citing United States v. Dean Foods Co., 2011 WL 9161, *1 (E.D. Wis. Jan. 3, 2011)) (“[A] district court has discretion to modify or quash a subpoena if it seeks discovery that is ‘unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive ....”). Indeed, the Plaintiff Insurers have already provided the dates on which they received notice of the HOAs’ claim of loss, and information regarding whether oral notice may have been provided prior to the written notice can be obtained from the Plaintiff Insurers.
*6 Accordingly, it is ORDERED:
The motions to quash the subpoena to the Cozen Firm, Docs. 184, 185, are GRANTED.
DONE AND ORDERED this 9th day of July.
Footnotes
Defendants are the Portofino Master HOA and the individual Tower HOAs.
Those Plaintiffs are: Westchester Surplus Lines Insurance Company, Arch Specialty Insurance Company, AXIS Surplus Insurance Company, Evanston Insurance Company, Aspen Specialty Insurance Company, and Maxum Indemnity Company.
Those Plaintiffs are: Colony Insurance Company, Independent Specialty Insurance Company, Interstate Fire & Casualty Company, Lloyds of London, James River Insurance Company, Landmark American Insurance Company, and Homeland Insurance Company of New York.
Hurricane Sally hit the Pensacola area as a Category 2 storm on September 16, 2020.
Sixteen (16) insurers initially brought this suit, but three of the four primary layer insurers have since settled the matter and dismissed their claims, leaving Westchester as the only remaining primary layer insurer in this suit.
According to the Defendant HOAs, until March 5, 2021, Hellman determined which Insurers to notify regarding the claim of loss based on his adjustment of the amount of loss at issue and the layer of coverage potentially impacted by that amount, eventually instructing Gallagher to stop at the $50 million tier. After that date, however, the Cozen Firm took it upon itself to determine who should be notified based on its communications with Lewis regarding the potential appraisal amount. Doc. 188 at 8-9. On March 18, 2022, the Cozen Firm notified those excess layer insurers with coverages above $50 million of the HOAs claim of loss. Doc. 192-6.
Similarly, as the moving party and the party seeking protection, the Cozen Plaintiffs and Excess Insurers bear the burden of proving their objections and privileges. See e.g., Bridgewater v. Carnival Corp., 286 F.R.D. 636, 638-39 (S.D. Fla. 2011).
In addition to Westchester, the Cozen Firm represents 5 of the 12 excess layer insurers in this suit.
Hellman also retained the Cozen Firm to represent him after this litigation began and before his July 2023 deposition.
The Defendant HOAs admit in their written submission that as of March 18, 2022, “only four carriers had been placed on written notice by Portofino.” Doc. 188 at 10.
The Defendant HOAs argue that information regarding payment for the Cozen Firm and for Appraisal expenses is relevant to the issue of whether the Plaintiff Insurers “participated” in the appraisal. The Moving Insurers argue that their payment of Appraisal expenses does not equate to participation and does not negate the requirement that the Defendant HOAs give notice or make an arbitration demand. The Court need not address whether the information is relevant because, as stated above, relevance does not overcome a privilege or a burden argument.
The Defendant HOAs believe the Cozen Firm searched and indexed documents produced before the Appraisal hearings and they should have access to this information to show that the Insurers were not prejudiced by any late production. The Cozen Firm disputes that it did any such indexing or search, but regardless, even if the Firm did that work, it would certainly qualify as attorney-work product and would not be discoverable. See Fla. Dep't of Fin. Servs. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania, No. 4:11CV242-RS/WCS, 2012 WL 13026761, at *3 (N.D. Fla. Jan. 6, 2012) (“It has been held in a limited circumstance that revelation of an attorney's selection of documents from a mass of documents can evidence the attorney's evaluation of the issues in the case, and thus improperly reveal attorney opinion work product.”).
Attached to the Insurers’ reply are payment ledgers indicating which Insurers paid for which expenses. The source documents for these payments can be obtained from the Plaintiff Insurers. One of the Plaintiff Insurers has also produced the March 18, 2022, written notice that was provided to the Insurers.
According to the parties, Lewis has already produced his complete file to the Defendant HOAs, including draft declarations. To the extent the Defendant HOAs seek to have the Cozen Firm produce drafts that the Firm never sent to Lewis, and which were transmitted internally only, those drafts are protected by the work-product privilege.
Cozen attorney John Dickenson represented that he is unaware of any communications between the Cozen Firm and AmWins.
The Cozen Plaintiffs and Excess Insurers argue for the application of the Shelton test, which has typically been applied to determinations regarding whether an opposing party's counsel should be deposed. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Under the Shelton test, the moving party must show that “(1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and non-privileged, and (3) the information is crucial to the preparation of the case.” Id. The Eleventh Circuit has not adopted the Shelton test, much less applied it outside the deposition context. The Court need not address the application of the Shelton test here, because regardless of the test, the Court finds the subpoena should be quashed.