Gartner, Inc. v. HCC Specialty Underwriters, Inc., 2024 WL 1908085 (S.D.N.Y. May 1, 2024)

Issue Discussed: Privilege and Work Product

Submitted by Gabrielle Siskind

Date Promulgated: May 1, 2024

Gartner sued its insurers in the Southern District of New York for losses incurred due to COVID-19 related event cancellations. Gartner also sued its broker, Aon, for losses not covered by its policies with insurers.

During discovery, the insurers withheld documents on the basis of attorney client privilege and work product. Gartner and Aon argued that the insurers waived any work product protection by disclosing the documents to their reinsurers, among others. Ultimately, certain documents were submitted to the court for in camera review.

The court held that the documents were protected by the work product doctrine because they: (1) post-dated the commencement of the litigation; (2) reflected mental impressions, opinions, and conclusions of counsel; and (3) were prepared in anticipation of litigation.

The court then went one step further and held that insurers did not waive the work product protection by sharing these documents or communicating with their reinsurers. In doing so, the court explained that in certain instances, “communications with ‘third-party’ reinsurers can waive any work product protection, ‘unless there was a common interest shared by the reinsurer and [the insurer].” To show a common interest, there must be a common legal interest, rather than a mere commercial one. Although the Gartner court did not elaborate, it relied on other cases where this concept was explained further. For example, in Fireman’s Fund Insurance Co. v. Great American Insurance Co. of New York, 284 F.R.D. 132 (S.D.N.Y. 2012), the court explained that “[t]he key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.” Additionally, “the parties must have come to an agreement, ‘though not necessarily in writing, embodying a cooperative and common enterprise toward an identical legal strategy.’” And, courts may consider “whether ‘multiple persons are represented by the same attorney’ or any other evidence to demonstrate the existence of ‘coordinated legal efforts.’”

Once a common legal interest has been established, the Gartner court explained that the party claiming work product protection must also show that the communications were “made in the course of formulating a common legal strategy.” Again, the Gartner court did not elaborate, but other courts, such as Fireman’s Fund, have explained that consideration may be given to whether an attorney participated in the exchange of information.

In reviewing these factors, the Gartner court held that the insurers did not waive the work product protection because their reinsurers shared a common legal interest. In this regard, the reinsurers were subject to potential liability for a judgment entered against, or a settlement entered by, insurers. Additionally, the communications were made to formulate a common legal strategy.