International Insurance Co. v. Newmont Mining Corp.

Issue Discussed: Privilege and Work Product / Privilege Logs / Common Interest Doctrine

Submitted by Amy Kline*

Date Promulgated: September 17, 1992

International Insurance Co. v. Newmont Mining Corp., 800 F. Supp. 1195 (S.D.N.Y. 1992)

Court: United States District Court for the Southern District of New York

Issue Decided: Can the common interest doctrine be used affirmatively to compel production of insured’s privileged documents sought by their insurer?

Key Holding              

An insurer cannot use the common interest exception to compel its insured to disclose otherwise privileged information. In a declaratory judgment action brought by an insurer to declare certain policies void, the insurer sought production of documents from the insured related to the insured’s defense of two separate, but related, actions. The court held that while the insurer “had the same ‘desire’ as its insured to have a successful defense of the said actions,” this is an “insufficient” common interest to warrant invasion of the attorney client relationship. The court also found the common interest exception inapplicable because there was no joint representation of the insured and insurer.

Key Takeaways

The common interest doctrine cannot be used to require a party with whom a common interest is alleged to produce privileged information.

*Amy Kline is a Vice-Chair of the Litigation Department and a Partner in the Insurance Practice Group of Saul Ewing LLP, resident in Philadelphia, Pennsylvania.