Recitation, as required by CPLR 2219(a), of the papers considered in review of these motions to compel.

PapersNumbered

Notice of Motion, Affirmation, and Exhibits1 - 6

Opposition to Notice of Motion and Cross Motion7 - 12

Reply Affirmation In support of Motion and Opp to Cross Motion13 - 17

Reply to Cross Motion18

Upon the foregoing cited papers, the Decision and Order of this Motion is as follows:

In this action seeking a declaratory judgment and contribution, plaintiff National Casualty Company, seeks an Order, pursuant to CPLR 3124, compelling defendant, Chubb Indemnity Insurance Company (Chubb) to produce complete and un-redacted copies of all claim notes identified on Cubb's privilege log.

Chubb cross-moves for an Order, pursuant to CPLR 3124, compelling plaintiff to produce complete and un-redacted copies of some of the documents identified on plaintiff's privilege log.

Briefly, on or about May 21, 2001, a Mr. Dominguez commenced an action against the owners of the apartment he was renting at 212 West Kingsbridge Road, Bronx, NY (the premises) for lead exposure which caused his infant child injuries spanning from January 22, 1992 through January 31, 2002 (the underlying action; Dominguez v 212 West Kingsbridge LTD and Howard Buck, Supreme Court, Bronx County Index No.17400/01).

It is alleged that the owners of the premises were provided with general liability insurance from the following insurance companies for the time period noted: National Casualty Company from December 20, 1991 - November 5, 1992; American Home Assurance Company (AHAC) from November 5, 1992 - December 20, 1993; and Chubb from December 20, 1993 - December 20, 1995.

National Casualty Company was the only insurance company to defend and ultimately settle the claims asserted against the owner of the premises in the underlying action. Both AHAC and Chubb, disclaimed coverage. In particular, Chubb disclaimed coverage on grounds that the owner [*2]filed a late notice of claim. In any event, plaintiff National Casualty Company commenced the within action seeking an Order declaring that the successive insurance companies, AHAC and Chubb, wrongfully issued disclaimer notices and were therefore obligated to defend the owner of the premises in the underlying action. The failure of the successive insurance companies to comply with their obligations resulted, according to plaintiff, in damages to plaintiff, individually and as assignee of the various rights the owner of the premises had against AHAC and Chubb. As a result, plaintiff seeks contribution from the successive insurance companies for the expenditures and settlement amounts plaintiff paid to resolve the underlying action.

On or about March 29, 2010, Chubb produced redacted claims notes and a sheet identified as Chubb's privilege log wherein Chubb identified 10 claims note entries that were redacted based on attorney-client privilege and/or work product. The authors of these claims notes, as listed on Chubb's privilege log, were Kevin Shanoski, Chubb's claims supervisor and Joanne Benson, Chubb's claims examiner. There is no indication either on the privileged log or the claims notes themselves that the redacted claims notes were by and between Chubb's employees to/from Chubb's attorneys. Chubb has submitted the un-redacted copies of the claims notes solely for this Court's review (Exhibit "3" to cross motion papers). It is noted that plaintiff immediately objected to Chubb's privilege log and asserted that the documents were improperly being withheld by Chubb.

Plaintiff also produced a privilege log of documents it considered privileged. It is not clear to this Court when plaintiff's privilege logs were produce, but Chubb never objected to same until plaintiff interposed the within application. Plaintiff also submits copies of its un-redacted documents for this Court's review (Exhibit "F" and "G" to plaintiff's reply papers).

This Court has had a preliminary conference and compliance conference with the parties' counsel and to this Court's recollection, plaintiff has consistently objected to Chubb's withholding of documents under the guise that same are "privileged." Chub has never brought to this Court's attention, during those conferences, that Chubb had objections to plaintiff's privilege logs. Now, it appears that the parties have been unable to proceed with discovery and seek court intervention to resolve whether or not the documents on the privileged logs of both parties are protected and should or should not be disclosed.

Plaintiff contends that full disclosure of Chubb's purported "privileged" documents must be compelled because : (1) there is no indication that the selectively redacted claim notes contain or memorialize communications between Chubb and it's attorneys; (2) merely because Chubb's claim supervisor is an attorney, his communications with Chubb's other claims examiners are not privileged because the claims supervisor was not acting as Chubb's attorneys, but only as a claims' supervisor; (3) even if the court determines that the communications by Chubb's claims supervisor are somehow privileged, then the privilege was waived when the claims supervisor was deposed on January 14, 2010 on this case; and (4) the privilege must be pierced in order to allow plaintiff to defend and prove that Chubb had earlier knowledge, or lacked earlier knowledge of the underlying action prior to the time Chubb purports it was notified of same. Furthermore, plaintiff argues that the items on their own privilege log is protected under the attorney-client privilege, are attorney work product not subject to disclosure, are documents prepared in anticipation of litigation, and are documents that are privileged and confidential proprietary information.

Chubb contends that the documents listed on Chubb's privilege log cannot be disclosed [*3]because said documents are protected by the attorney-client privilege and/or are attorney work products. In particular, Chubb contends that its claims examiner and claims supervisor included communications about legal analysis and legal advice provided by Chubb's in house counsel, Jim Deutsch and Bill Shelley (collectively, Chubb's in house counsel). Moreover, Chubb is not objecting to plaintiff's privilege log where it is noted that the redactions are communications between plaintiff, its current attorneys or the prior attorneys who commenced the within declaratory judgment action. Rather, Chubb argues that the rest of the documents deemed "privileged" by plaintiff must be disclosed as there is no basis for with holding said documents.

This Court has reviewed the un-redacted documents and concludes that Chubb must immediately disclose all of the documents identified on it's privilege log. Chubb's claims supervisor has repeatedly testified at depositions that he was not Chubb's attorney. In fact, Chubb has been unable to submit an proof that the claims supervisor was their attorney. Absent an attorney-client relationship, an attorney client privilege can not exist, nor is the attorney work product doctrine applicable. There is simply no factual basis upon which Chubb has consistently refused to disclose non-privileged material. The fact is that Chubb was unable to demonstrate that the claim supervisor, Shanoski, was Chubb's attorney before, during or after the commencement of the within action or the underlying action. Notably, in support of it's opposition, Chubb has not submitted an affidavit from its claims supervisor, Kevin Shanoski.

Raising, for the first time during this entire dispute that the documents contained privileged information as legal analysis and legal advice provided Chubb's in house counsel attorneys, is factually misplaced. At no time do these claim notes re-iterate a legal analysis or legal advice allegedly provided by Chubb's in house counsel. At most, there are notations which state that a discussion will be had with Chubb's in house counsel or that a discussion was had, but the details of those discussions are not written on these claim notes. Merely because Chubb's in house counsel's name appears on a claim note does not give rise to the attorney-client privilege, especially where the names are included to inform a claims examiner to contact Chubb's in house counsel or to confirm that the claims supervisor/examiner contacted Chubb's in house counsel.

Chubb's cross motion to compel plaintiff to disclose documents on plaintiff's privilege log, is denied, in part. Plaintiff listed 95 documents in their privilege log. Of those 95 documents, Chubb is only objecting to 17 redacted and/or withheld documents from plaintiff. Of these seventeen documents, this Court concludes that 12 are protected communication between plaintiff and its counsels and therefore the attorney-client privilege is application here (these documents are identified as: Bate Stamp #: SIC0031-0034; SIC0041-0044; SIC0062-0066; SIC0107; SIC0110-SIC0113; SIC0132; SIC0726-0727; SIC0827-0828; SIC0883; SIC0934-0943; SIC0946; and SIC0973-0975).

Plaintiff, however, has failed to convince this Court that all the documents marked as "reserves" need not be disclosed. First, plaintiff failed to submit copies of documents containing "reserves" information and identified as Bate Stamp # SIC0434 and SIC0546 for this Court's in-camera review and therefore, said documents are to be disclosed and provided to defendant.

The document identified as Bate Stamp # SIC0740, also noted to be "reserves," need not be disclosed as it discusses settlement values of the underlying action and other trial preparatory information and so, this particular document need not be disclosed. Plaintiff claims that the [*4]remaining documents are undiscoverable as it is irrelevant to the instant litigation and/or pertains to other matters and/or are notes regarding the instant litigation. After review, the following documents have properly been withheld as undiscoverable: claims notes, SIC0001-001 [Exhibit "G" to plaintiff's reply papers]; SIC0746; SIC0767-0768; SIC0160; and SIC0414. Accordingly, it is

ORDERED that plaintiff's motion to compel, is granted, in its entirety; and it is further

ORDERED that defendant shall provide plaintiff with all the documents listed on its privilege log, forthwith; and it is further

ORDERED that defendant Chubb Indemnity Insurance Company's cross motion is partially granted and plaintiff shall disclose to Chubb documents identified as SIC0434 and SIC0546, forthwith; and it is further

ORDERED that the parties complete discovery and file the Note of Issue by March 31, 2011.^[FN1]

February 25, 2011ENTER

Hon. JOAN M. KENNEY, J.S.C.