Domus BWW Funding, LLC v. Arch Ins. Co.
Domus BWW Funding, LLC v. Arch Ins. Co.
Case No. 2:23-cv-00094 (E.D. Pa. 2024)
October 31, 2023

Wolson, Joshua D.,  United States District Judge

Privilege Log
In Camera Review
Attorney-Client Privilege
Attorney Work-Product
Failure to Produce
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Summary
The court ordered Arch Insurance Company to produce certain items from its privilege and redaction logs, including an invoice and emails, after determining that they were not protected by the attorney-client privilege or the work product doctrine. This decision highlights the narrow scope of these protections and the importance of demonstrating a reasonable anticipation of litigation in order to claim work product protection.
Additional Decisions
DOMUS BWW FUNDING, LLC, et al., Plaintiffs,
v.
ARCH INSURANCE COMPANY, et al., Defendants
Case No. 2:23-cv-00094-JDW
United States District Court, E.D. Pennsylvania
Filed October 31, 2023
Wolson, Joshua D., United States District Judge

ORDER

AND NOW, this 31st day of October, 2023, upon consideration of the Motion Of Plaintiffs 1801 Admin And Domus Funding To Compel The Production Of Documents From Arch Insurance Company (ECF No. 49) and my in camera review of the documents at issue, I note as follows.

1. The attorney-client privilege seeks to “encourage clients to make full disclosure of facts to counsel so that [counsel] may properly, competently, and ethically carry out his representation. The ultimate aim is the proper administration of justice.” In re Chevron Corp., 633 F.3d 153, 164 (3d Cir. 2011) (internal quotes omitted). But the privilege does not protect all communications between client and counsel. It applies only to communications which “relate[] to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purposes of committing a crime or tort.” Because the attorney-client privilege obstructs the truth-finding process, courts construe it narrowly. See Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).

2. The work product doctrine, unlike the attorney-client privilege, “protects from discovery materials prepared or collected by an attorney in the course of preparation for possible litigation.” In re Grand Jury Subpoena, 745 F.3d 681, 693 (3d Cir. 2014) (internal quotes omitted); see Fed. R. Civ. P. 26(b)(3). The doctrine intends to preserve an attorney’s ability to “assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Hickman v. Taylor, 329 U.S. 495, 511 (1947).

3. In the Third Circuit, there is a two-step inquiry for evaluating a claim for work product protection. First, work product protection is only available when there is a “reasonable anticipation” of litigation; this requires a court to determine by an objective standard when the parties could have foreseen – and thus prepared for – subsequent litigation. State Farm Mut. Auto. Ins. Co. v. Sanders, No. CV 12-3052, 2014 WL 12618078 at *5 (E.D. Pa. Mar. 27, 2014) (internal citation omitted); see also In re Chevron Corp., 638 F.3d 153, 164 (3d Cir. 2011). Second, the documents the party seeks to withhold must have been prepared primarily for the purposes of litigation; documents prepared in the ordinary course of business, even if useful in subsequent litigation, are not afforded work product protection. See Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000).

4. Privilege Log Item No. 1, an invoice dated December 10, 2018, from BatesCarry LLP, is neither protected work product nor material subject to the attorney-client privilege. While the invoice is, in a sense, a communication from counsel to client, it does not convey an opinion of law or legal services. The summaries of billed tasks do not reveal legal analysis or confidential communications, and the invoice is not privileged. And although the parties might have foreseen the possibility of litigation at the time the invoice was prepared, nothing on the face of the document suggests that BatesCary prepared it in anticipation of such litigation. The invoice is an ordinary business record, and Arch cannot shield it from discovery as protected work product.

5. The content of Arch 226-27 is a subset of Privilege Log Item 18. Neither the attorney-client privilege nor the work product doctrine protects either document. Although these emails include messages between Arch and their outside counsel, they do not concern the provision of legal advice or any confidential legal strategy. They are preliminary materials that demonstrate that Arch decided to retain BatesCary and that BatesCary had no conflicts. They do not provide legal advice or gather facts for the provision of such advice, nor do they reveal litigation strategy. Arch has failed in carrying its burden to show these emails were drafted in anticipation of litigation, so they are not protected work product.

In light of the foregoing, it is ORDERED that Arch shall produce the items identified on its privilege and redaction logs identified as Privilege Item No. 1, Privilege Item No. 18, and ARCH 226-27.