Pages Numbered Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2 Opposing Affidavits (Affirmations) 3-4 Reply Affidavits (Affirmations) 5-6 Affidavit (Affirmation) Other Papers Upon the foregoing papers, it is ORDERED that the motion by the plaintiffs and the motion by the defendants to compel discovery are determined as follows. The plaintiffs commenced three separate declaratory judgment actions seeking indemnification from the defendant insurance carriers as a result of three underlying actions brought against them pursuant to the Child Victims Act (CVA). The defendants disclaimed coverage for the underlying actions on various grounds. The plaintiffs retained their own counsel and ultimately settled the three cases. In their answers, the defendants have each asserted an affirmative defense that the settlement amounts of the underlying cases were unreasonable. The defendants now move to compel the plaintiffs to produce the entire underlying litigation files of the law firm retained to defend the actions. The plaintiffs move to compel the defendants to provide documents concerning the amounts of any settlements, verdicts or judgments of other CVA actions against other insureds. “A party suing to enforce an alleged right to indemnification for the costs of defending and settling a prior lawsuit does not thereby, without more, place at issue the party’s privileged communications with counsel concerning the prior lawsuit and settlement” (Deutsche Bank Trust Co of Americas v. Tri-Links Inv. Trust, 43 AD3d 56, 57; see Alterra America Ins. Co v. National Football League, 191 AD3d 496; East Ramapo Central School Dist v. New York Schools Insurance Reciprocal, 150 AD3d 683). An “at-issue waiver” of the attorney-client privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue, such as by asserting a claim or defense that the party intends to prove by the use of the privileged material (see 2138747 Ontario Inc v. Lehman Bros. Holdings, 210 AD3d 412; Nomura Asset Capital Corp v. Cadwalader Wickersham & Taft, 62 AD3d 581; Deutsche Bank Trust Co of Americas v. Tri-Links Inv. Trust, 43 AD3d at 63). Here, the defendants contend that the plaintiffs waived any privilege for the legal files because they asserted a reasonable belief of nonliability or lack of knowledge of the underlying claims. However, these assertions, without more, are insufficient to constitute an affirmative act placing the privileged communications at issue. The plaintiffs did not place at issue any legal advice received from their attorneys in the underlying actions, the attorneys’ work product, or their private mental impressions, conclusions, opinions or legal theories (see East Ramapo Central School Dist v. New York Schools Insurance Reciprocal, 150 AD3d at 689; Deutsche Bank Trust Co of Americas v. Tri-Links Inv. Trust, 43 AD3d at 65). The defendants also failed to demonstrate that invasion of the privilege was necessary to assess the reasonableness of the settlements as reasonableness is an “objective standard” (Deutsche Bank Trust Co of Americas v. Tri-Links Inv. Trust, 43 AD3d at 65). The record demonstrates that the plaintiffs produced extensive documents from the underlying actions, including pleadings and deposition transcripts, which provides a sufficient basis to litigate the reasonableness of the plaintiffs’ decision to settle the actions (see Hudson Specialty Ins. Co v. Haley & Aldrich Inc., 159 AD3d 1344; East Ramapo Central School Dist v. New York Schools Insurance Reciprocal, 150 AD3d at 689; Deutsche Bank Trust Co of Americas v. Tri-Links Inv. Trust, 43 AD3d at 65). Accordingly, the motion by the defendants is denied. With respect to the plaintiffs’ motion, the defendants Chubb and Allianz Insurance Company demonstrated that the plaintiffs’ demand for documents and communications concerning the amounts of any settlements, verdicts or judgments of other CVA cases against other insureds was overly broad and burdensome (see Berkowitz v. 29 Woodmere Blvd. Owners Inc., 135 AD3d 798; Accent Collections v. Cappelli Enterprises, 84 AD3d 1283). The plaintiffs also seek a CVA spreadsheet from the defendant Utica Mutual Insurance Company. In this regard, an employee of Utica testified that the company maintained a spreadsheet to track such claims and that there are documents indicating what Utica has paid on other claims. The employee also testified that Utica believed that the settlements in at least two of the underlying actions were not reasonable “based on what our experience and what we’ve seen with other cases.” Thus, Utica specifically raised the issue of reasonableness in relation to other cases it has handled. Under these circumstances, the amounts of other settlements or judgments is material and necessary to the issues in this action (see Clarendon National Ins. Co v. Atlantic Risk Management Inc., 59 AD3d 284). Therefore, disclosure of the CVA spreadsheet is warranted. The plaintiffs concede that they are not seeking any privileged information such as claim files but only the amounts of the other cases. Since the document may contain privileged information, Utica may redact any information other than the amounts of any settlements, verdicts or judgments. Accordingly, the plaintiffs’ motion is granted to the extent that Utica is directed to produce a redacted copy of its CVA spreadsheet within 30 days after service of a copy of this order with notice of entry. Dated: June 28, 2024
