The following e-filed documents, listed by NYSCEF document number (Motion 003) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 173, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 254 were read on this motion for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 174, 175, 176, 177, 178, 179, 180, 181, 182, 184, 185, 186, 187, 188, 189 were read on this motion for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, [*2]234, 235, 250, 255 were read on this motion for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 251, 253 were read on this motion for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 103, 104, 105, 109, 110, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 190, 191, 192 were read on this motion for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 106, 107, 108, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 252, 256 were read on this motion for DISCOVERY.

This action arises from insurers' alleged nonpayment of defense costs incurred by plaintiff, Combe Incorporated, in underlying personal-injury actions. Combe purchased primary insurance policies from defendant Twin City Fire Insurance Company and excess policies from defendants National Union Fire Insurance Company of Pittsburgh, PA, XL Specialty Insurance Company, and Peleus Insurance Company.^[FN1] Combe has asserted claims in this action for (i) a declaratory judgment "that Insurers are obligated under the Policies and applicable law to timely pay the defense costs incurred in the" underlying actions, plus pre-judgment interest, and (ii) breach of contract.

This decision addresses several discovery motions filed by the insurers and by Combe, consolidated here for disposition.

On motion sequences 003, 004, 005, and 006, the insurers each separately move to compel Combe to supplement its interrogatory responses and document production with information concerning the defense costs Combe incurred under each policy period. These motions are granted.^[FN2]

On motion sequences 007 and 008, Combe moves to compel the insurers to supplement their responses to Combe's interrogatories and document production requests.^[FN3] These motions are granted in part and denied in part.

I. Motion Sequences 003, 004, 005, and 006

Each insurer moves to compel Combe to provide supplemental information and documents about defense costs Combe incurred in the underlying actions. Combe raises the same argument in response to each motion: That it does not have burden to allocate defense costs against each insurer across policy periods.

On motion sequence 003, XL moves to compel Combe to provide complete responses to its second set of interrogatories. (NYSCEF No. 48.) XL's interrogatories ask Combe "to state the amount of defense costs incurred by Combe" during the time in which the XL policy was in effect "for individual claimants and groups of claimants," and to identify specific supporting documents and pieces of information."^[FN4] (NYSCEF No. 59 at 3 [memorandum of law]; see NYSCEF No. 55 at 4-15 [responses to second set of interrogatories nos. 1-5, 9-21].)

On motion sequence 004, Peleus moves to "compel Combe to answer interrogatories and document requests [for] specific information about the amount of defense costs that Combe alleges Peleus owes and remain unpaid, the claimants or groups of claimants associated with those costs, and the calculation upon which the claimed deficiency is based (and to produce documentary evidence in support of Combe's claim and calculations)." (NYSCEF No. 64 at 1.) Specifically, Peleus seeks responses to document production requests 5 and 6 and interrogatories 1-10 and 18. (See id. at 2-3.)

On motion sequence 005, National Union argues that Combe has not answered interrogatories seeking information on individuals with knowledge of the underlying claims and defense costs incurred by Combe in defending itself on those underlying claims (NYSCEF No. 84 [interrogatories nos. 2-6]); nor requests for information on "associated defense costs for which Combe contends National Union refused to issue timely payment, the invoices for those defense costs, the total amount of Combe's defense costs in relation to those claims, the total amount of defense costs Combe contends National Union failed to pay, and the factual basis for same, including the calculation." (NYSCEF No. 87 at 3; NYSCEF No. 84 [interrogatory nos. 8-15, 18-19]). National Union also argues that Combe failed to respond to requests seeking documents and communications supporting Combe's claim for defense costs and the allocation of those defense costs" (NYSCEF No. 87 at 3; NYSCEF No. 83 [document request nos. 6-11]), and for documents supporting Combe's answers to the interrogatories (NYSCEF No. 83 [document request nos. 12-13]).

On motion sequence 006, Twin City seeks to compel Combe to supplement its responses to Twin City's first and second sets of interrogatories, which "request specific information about the amount of defense costs that Combe alleges Twin City owes and remain unpaid, the claimants or groups of claimants associated with those costs, and the calculation upon which the claimed deficiency is based." (NYSCEF No. 90 at 1 [memorandum of law]; see NYSCEF No. 95 [first-set interrogatory nos. 2-12]; NYSCEF No. 97 [second-set interrogatory nos. 2-12].)

Combe, in opposing these four motions, argues that the insurers' requests "regarding the [*3]allocation of defense costs are misplaced because they raise legal issues and Combe does not have an obligation to allocate its defense costs across Insurers or policy periods." Instead, Combe says, it has fulfilled its discovery-related obligations with respect to defense costs by posting all its attorney-fee invoices from the underlying action to an online portal to which the insurers have access. (See e.g. NYSCEF No. 208 at 5; NYSCEF 174 at 6-7.)

The court agrees with the insurers. Combe does not cite caselaw that addresses how defense-cost-related discovery should function in this context. In particular, Combe does not provide authority for its position that it need not specify its position on how much of the defense costs each insurer owes and how those costs should be allocated among the various insurers (and policies) from which Combe seeks coverage.

Combe appears to assume that it does not need to identify the amount it believes each insurer owes because it can sue one insurer for the entire sum owed and leave that insurer to seek contribution from the other insurers. That principle, though, would apply only if the insurers in this action co-insured Combe during the same time period—that is, they provided policies that concurrently "insure[d] the same property, the same interests and against the same risk." (Cont. Ins. Co. v Commercial Union Ins. Co., 27 AD2d 333, 336 [1st Dept 1967]; cf. Ace Fire Underwriter's Ins. Co. v ITT Indus., Inc., 55 AD3d 346 [1st Dept 2008] [holding that an insurer could not seek contribution against another insurer when they "were not co-insurers of the same risk during the same period of time"].) And that is not the case here. Rather, different policies, issued by different insurers, were in effect during different time periods—and that several of the policies were triggered only when previous policies were exhausted. (See NYSCEF No. 2 at 4-8 [complaint allegations about which policies were in effect during different time periods].)

In other words, on the current record, the existence and extent of Combe's coverage for defense costs—and thus the amount it can recover from a given insurer—will likely depend significantly on allocating those costs among the various triggered policies. And that means, in turn, that for the insurers to understand and realistically defend Combe's claims against them, the insurers need (and are entitled to obtain) greater clarity from Combe on the amount, and allocation, of its defense costs across policies.

Motion sequences 003, 004, 005, and 006 are granted. Combe must provide supplemental responses to interrogatory nos. 1-5 and 9-13 of XL's second set of interrogatories; interrogatory nos. 1-10 and 18 of Peleus's interrogatories; interrogatory nos. 2-6, 8-15, and 18-19 of National Union's interrogatories; and interrogatory nos. 2-12 of Twin City's first set of interrogatories plus nos. 2-12 of Twin City's second set of interrogatories. Combe must also provide supplemental responses to nos. 5-6 of Peleus's document production requests and nos. 6-13 of National Union's document production requests.

II. Combe's Motions to Compel (Motion Sequences 007 and 008)

A. Motion Sequence 007

On motion sequence 007, Combe seeks to compel Peleus to complete its document production and to require Peleus to supplement its interrogatory responses concerning obligations Peleus owes to Combe. The court concludes that a final deadline for document production is warranted but that Peleus need not provide supplemental interrogatory responses unless and until it receives additional discovery from Combe.

With respect to the branch of its motion seeking a deadline for document production, Combe argues that the original document production deadline was November 17, 2023, and that after making a supplemental document production request for documents outside Peleus's claim [*4]file in March 2024, Peleus has not completed its document production or provided a date when production will be complete. (NYSCEF No. 190 at 3.) Peleus contends that it has been providing the documents on a rolling basis and that to satisfy Combe's request it has needed to undertake a large and burdensome search. (NYSCEF No. 149 at 15.) Peleus does not, however, provide an approximate date when it expects to complete this rolling production. The court concludes that Peleus must complete its document production within 45 days of entry of this order.

On the second branch of its motion, Combe seeks supplemental responses to the interrogatories it submitted to Peleus. Peleus largely objects to Combe's interrogatories as "premature, as Combe has failed to provide all information and documents necessary for an evaluation, analysis, and calculation of the total amount of reasonable and necessary defense costs incurred by Combe." (NYSCEF No 166 at 9-12 [Peleus interrogatory responses].) The court agrees. It is unreasonable for Combe to expect Peleus to identify the defense obligations it owes Combe (other than the amounts for which it has already issued payment) without having first provided Peleus with the information needed to make that determination. This branch of Combe's motion to compel is granted only to the extent that Peleus must provide supplemental responses to Combe's interrogatories within 45 days after Combe provides Peleus the supplemental discovery required under this court's determination on motion sequence 004.

B. Motion Sequence 008

On motion sequence 008, Combe moves to compel National Union, Twin City, and XL to comply with its discovery requests. According to Combe, National Union has improperly refused to provide its entire claim file or search for documents outside its claim file; improperly limited production to documents from between January 13, 2020, to May 4, 2022; and improperly withheld documents under the work-product doctrine. (NYSCEF No. 107 at 1-2.) Combe contends that Twin City has not made a supplemental production of relevant documents outside its claim file that it had previously committed to provide. (Id. at 2.) And Combe argues that although National Union, Twin City, and XL raise "a common interest or joint defense protection over certain documents (as reflected in privilege logs), [they] have been unable to explain what the common interest is and for what period of time" it applies. (Id. at 3.)

i. Scope of Discovery (National Union)

Combe argues that National Union has, at least, "an obligation to search for documents [beyond its claim file] from the various adjusters that have worked on the Combe matters over the years, who have direct involvement and knowledge of Combe's defense costs and associated claims." (NYSCEF No. 107 at 5.) Combe further contends that National Union has improperly limited claim-file production to the period after the date on which National Union claims its defense obligations were triggered, namely January 13, 2020. (See id. at 4.) National Union argues that it should not have to produce discovery beyond its claim file—namely searches for ESI from all adjusters "who touched" the claim file—because such a search would be overly broad; and that any ESI searches pertaining to documents predating January 13, 2020, are irrelevant. (NYSCEF No. 207 at 9 [memorandum in opposition].) The court agrees with National Union.

Combe does not explain why documents/information predating January 13, 2020, would be material or necessary to the litigation. (Cf. FC Bruckner Assoc., L.P. v Fireman's Fund Ins. Co., 114 AD3d 542, 543 [1st Dept 2014] ["Plaintiffs' demand was not overbroad or unduly burdensome, since it specifically sought claims files arising during the relevant time period under the excess policy at issue in this case."].) Nor does Combe explain how the discovery it [*5]seeks would otherwise provide useful information about its claims for defense costs it incurred once the National Union policy was triggered.

This branch of Combe's motion is therefore denied.

ii. Work Product Doctrine (National Union)

Combe argues that National Union withheld documents claiming "post threat of litigation claim notes" or "post litigation claim notes"; and that this basis for refusing to produce documents is invalid because "notes taken or investigations sought by a claims adjuster are done in the ordinary course of an insurer's business and they are not privileged, work product or otherwise protected." (NYSCEF No. 107 at 5-6.) National Union claims that these documents—which post-date Combe's May 4, 2022, letter threatening litigation—were prepared in anticipation of litigation and are thus privileged.^[FN5] (NYSCEF No. 207 at 10.)

The court agrees with Combe. Although National Union noted in its privilege log that the withheld/redacted documents were protected under the work-product doctrine, it has not shown here why that is so. (Cf. Warren v New York City Tr. Auth., 34 AD2d 749, 749 [1st Dept 1970] ["The affidavit of defendant's attorney shows that these statements were taken purely for the purpose of defending the anticipated litigation, and nothing to contradict this highly probable fact is shown."].) National Union does not establish that the information encompassed in those documents contain "legal advice, . . . legal recommendations or attorney thought processes" as opposed to investigations about whether "coverage should be provided and the costs of such coverage." (Brooklyn Union Gas Co. v Am. Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005].) Without references to the content or nature of the documents withheld, the court is unable to determine whether they are privileged. This branch of Combe's motion is therefore granted to the extent that National Union must provide a supplemental, more-detailed privilege log/affidavit explaining why the work product doctrine applies to the post-May 4, 2022, documents.

iii. Supplemental Document Production Deadline (Twin City)

On this branch of its motion, Combe "reserves all rights to supplement this motion to compel after evaluating Twin City's supplemental document production." (NYSCEF No. 107 at 5.) Combe argues that Twin City agreed to provide Combe with supplemental documentation beyond its claim files. (NYSCEF No. 107 at 3-4; NYSCEF No. 201 at 2.) Twin City did not specify when it would do so. On reply Combe concedes that Twin City has provided supplemental production since Combe filed its motion. Combe, in turn, requests that this court order Twin City to complete that production by June 12, 2024. (NYSCEF No. 256 at 5 [reply memorandum].) Given that date has since passed and Combe has not further claimed that Twin City's production is insufficient, the court denies this branch of Combe's motion as academic.

iv. Common Legal Interest Doctrine (XL, National Union, and Twin City)

Combe claims that XL, National Union, and Twin City improperly withheld or redacted documents by invoking the common-legal-interest doctrine. Under that doctrine, "[d]isclosure is privileged between codefendants, coplaintiffs or persons who reasonably anticipate that they will become colitigants, because such disclosures are deemed necessary to mount a common claim or [*6]defense, at a time when parties are most likely to expect discovery requests and their legal interests are sufficiently aligned that the counsel of each [i]s in effect the counsel of all." (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 628 [2016] [internal quotation marks omitted].)

Combe argues that this privilege is not available to these insurers. According to Combe, the insurers have not articulated what common interest they have, and to the contrary, "have taken the position that their individual obligations are less, and other Insurers must contribute more, towards Combe's defense costs." (NYSCEF No. 107 at 7.) The insurers contend that they have a common interest in investigating whether Combe is entitled to insurance coverage and that their interests are not required to be identical to come within the doctrine (NYSCEF No. 200 at 7-8.)

The court first concludes that the insurers have demonstrated that they reasonably believed they would become co-litigants in an action. (See 21st Century Diamond, LLC v Allfield Trading, LLC, 142 AD3d 913, 914 [1st Dept 2016].) In particular, the insurers provide various letters in which Combe's counsel stated that if it did not receive defense-cost payments from the insurers, Combe would sue them.^[FN6] (See NYSCEF Nos. 194, 196-197.)

The question is whether the insurers share a common interest as co-litigants. The Court of Appeals in Ambac did not weigh in on what will constitute a common legal interest. (See 27 NY3d at 630 n 4.) Some courts have found a common legal interest between entities when they were co-litigants or reasonably expected to become co-litigants. (See Matter of Megan-Racine Assoc., Inc., 189 BR 562, 573 [Bankr ND NY 1995].) Others have found a common legal interest when parties, or parties and nonlitigants, seek to enforce a common right or pursue a common legal strategy or goal. (See e.g. Matter of Part 60 RMBS Put-Back Litig., 161 AD3d 436, 437 [1st Dept 2018] [identifying a "common legal interest of pursuing . . . mortgage put-back claims"].) San Diego Gas & Elec. Co. v Morgan Stanley Senior Funding, Inc., 136 AD3d 547, 548 [1st Dept 2016] [identifying common "desire to [ensure compliance with] contractual obligations"]; Delgado v Donald J. Trump for President, Inc., 2024 WL 3497598, at *2 [SD NY, July 22, 2024, No. 19-cv-11764 [holding that common legal interest existed in enforcing a confidentiality agreement]; ACE Sec. Corp, 55 Misc 3d 544, 561-562 [Sup Ct, NY County 2016] [holding that common legal interest existed where parties "exchanged communications to coordinate their legal strategy to put back defective loans, even if they may have been at odds vis-à-vis other issues"]); Great Am. Ins. Co. of New York v Castleton Commodities Intern. LLC, 2015 WL 6437397, at *3 [SD NY Oct. 15, 2015, 15-cv-3976], on reconsideration 2015 WL 6955176 [SD NY Nov. 3, 2015] [assuming that communications between primary insurers and excess insurers [and their counsel] were protected by the common-interest doctrine].)

Crucially, the insurers' interests need not align on all issues. (See San Diego Gas & Elec. Co., 136 AD3d at 548 ["The fact that respondent and defendant were in a debtor-creditor relationship did not make their interests adverse in all matters and at all times."].) The test is instead whether their interests are sufficiently aligned. This court concludes that, under the standards laid out in the cases cited above, the insurers' interests in determining the extent of Combe's coverage are sufficiently aligned for common-interest purposes. That the insurers "may [*7]take different positions on the ultimate outcome or allocation of costs associated with Combe's demands for insurance coverage" (NYSCEF No. 193 at 7) does not show that the insurers lacked a common interest in pursuing a strategy to determine whether Combe is entitled to insurance coverage in the first place.

Combe's motion to compel is denied. The court does not reach Combe's contention that the insurers failed to show that these communications are of the sort covered by the attorney-client privilege, because Combe made this argument for the first time on reply.^[FN7]

Accordingly it is

ORDERED that XL's motion to compel Combe to produce supplemental discovery (mot seq 003) is granted, except that Combe need not respond to interrogatories 14-23 of XL's second set of interrogatories (which are beyond the 25-interrogatory limit); and Combe must submit identify or submit supplemental information and documents as described above; and it is further

ORDERED that Peleus's motion to compel Combe to produce supplemental discovery (mot seq 004) is granted; and Combe must submit identify or submit supplemental information and documents as described above; and it is further

ORDERED that National Union's motion to compel Combe to produce supplemental discovery (mot seq 005) is granted; and Combe must submit identify or submit supplemental information and documents as described above; and it is further

ORDERED that Twin City's motion to compel Combe to produce supplemental discovery (mot seq 006) is granted; and Combe must submit identify or submit supplemental information and documents to the extent set forth above; and it is further

ORDERED that Combe must produce responsive documents and interrogatories as set forth in the four preceding decretal paragraphs, within 45 days of service of a copy of this order with notice of its entry; and it is further

ORDERED that Combe's motion to compel Peleus to produce supplemental discovery (mot seq 007) is granted to the extent that Peleus must complete its document production within 45 days of service of notice of entry of this order, and Peleus must provide supplemental responses to Combe's interrogatories within 45 days after Combe provides Peleus the supplemental discovery required on motion sequence 004; and it is further

ORDERED that Combe's motion to compel XL, National Union, and Twin City to produce supplemental discovery (mot seq 008) is granted to the extent that National Union must within 45 days of service of notice of entry provide a supplemental detailed privilege log/affidavit explaining why the work product doctrine applies to the post-May 4, 2022, documents, and is otherwise denied.