OCTOBER 2013 BAD FAITH CASES: COURT QUASHED SUBPOENA DIRECTED TO ATTORNEY OF THIRD PARTY AS IT SOUGHT INFORMATION IRRELEVANT TO THE CARRIER’S CLAIMS HANDLING ON AN IRRELEVANT CONTRACT, AND WOULD VIOLATE THE ATTORNEY CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE (New Jersey Federal)
In Kull v. Arrowood Indemnity Company, the court addressed a motion to quash a subpoena issued in connection with an underlying case in federal district court in Ohio. At the time of the subpoena, the only litigation issue in Ohio was a bad faith insurance claim by an insured corporation against one of its insurers. That insured originally had disputes with two insurers, with which it signed releases in connection with a settlement.
The subpoena was directed at the attorney for the second insurer, not a party in the Ohio litigation, who was involved with the litigation and the release of his client, which was putatively similar or identical to the release provided to the insurer in the bad faith case.
The court quashed the subpoena.
First, the information requested was not relevant. The non-party insurer’s release did not have any relevance to the way insurer defendant handled the claim. The other insurer’s release was not even at issue in that case. Even if certain provisions of the agreements are “substantively identical”, since they were two separate contracts, any information that the other insurer’s attorney could provide about the party insurer’s release is not likely to lead to relevant evidence in the Ohio matter.
Second, the information requested is protected by the attorney-client privilege and the work product doctrine. The court agreed that the requested deposition would require the attorney to divulge his own mental impressions and opinions regarding the development and/or preparation of his client’s release and thus, violate the work product doctrine.
Date of Decision October 11, 2013
Kull v. Arrowood Indemnity Co., Civil Action No. 13-4343 (FLW), 2013 U.S. Dist. LEXIS 147271 (D.N.J. October 11, 2013) (Bongiovanni, U.S.M.J.)
