Progressive Casualty Insurance Company v. Federal Deposit Insurance Corporation
Issue Discussed: Privilege and Work Product / Privilege Logs / Common Interest Doctrine
Submitted by Joseph Monahan*
Date Promulgated: October 3, 2014
Progressive Casualty Insurance Company v. Federal Deposit Insurance Corporation, 49 F. Supp. 3d 545 (N.D. Iowa Oct. 3, 2014)
Court: U.S. District Court for the Northern District of Iowa
Issue Decided: Are documents reflecting communications between a cedent and its reinsurer subject to discovery, or does the common interest doctrine operate to shield the same?
Documents provided by a cedent to its reinsurer in the ordinary course of business, and not in anticipation of litigation, are not protected from discovery by the work product doctrine. Even to the extent those documents are otherwise subject to the attorney/client privilege, the common interest doctrine does not automatically operate to shield them from discovery. A finding of a common legal interest does not necessarily flow from the cedent/reinsurer relationship. The fact that the reinsurer may have an obligation to pay the cedent’s losses signifies that they have a shared commercial or financial interest, but not necessarily a shared legal one sufficient to implicate the common interest doctrine.
A party seeking to establish applicability of the common interest doctrine must establish a common legal, rather than commercial, interest between itself and the party with whom the information has been shared. While the parties must have come to some agreement reflecting a “cooperative and common enterprise towards an identical legal strategy”, that agreement need not be in writing. However, there must be some evidence of a joint legal strategy. Further, any exchange of documents between the parties must have been done in furtherance of that shared strategy and with the parties’ mutual understanding of the same.
*Joseph Monahan practices in the Philadelphia office of Saul Ewing LLP, where he is a partner and Vice-Chair of the Insurance Practice Group. He is an ARIAS member.