UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIG INSURANCE COMPANY, :
:
Plaintiff, : Civil Action No.: 08-0528 (RMU)
:
v. : Re Document Nos.: 11, 12, 13
:
FIREMEN’S INSURANCE COMPANY :
OF WASHINGTON, D.C., :
:
Defendant. :
MEMORANDUM OPINION
DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION TO SEAL; DENYING WITHOUT
PREJUDICE THE DEFENDANT’S MOTION TO COMPEL AND/OR FOR SANCTIONS
I. INTRODUCTION
This matter comes before the court on plaintiff TIG Insurance Company’s (“TIG” or “the
plaintiff”) motion for leave to file a summary judgment motion under seal, and defendant
Firemen’s Insurance Company of Washington, D.C.’s (“Firemen’s” or “the defendant”) motions
to compel and for sanctions. Because the plaintiff has failed to provide the court with sufficient
information to evaluate its motion for leave to file its summary judgment motion under seal, the
court denies that motion without prejudice. Noting that the discovery the defendant seeks may
reasonably have probative value, but further observing that the plaintiff failed to provide a
privilege log the court denies without prejudice the defendant’s motion to compel and/or for
sanctions.
II. FACTUAL & PROCEDURAL BACKGROUND
In August 2001 and again in March 2002, during the completion of Millennium Square
(the “Project”), a one million square foot mixed-use building located in Washington, D.C., the
residential portion of the Project experienced significant flooding. Compl. ¶¶ 6-7. Investigation
of the problem identified leaking from plumbing fittings and fixtures. Id. ¶ 8. At least eleven
residents of the Project filed lawsuits (the “Resident Lawsuits”) against 2200 M Street, LLC
(“2200 M Street”), a limited liability subsidiary of Millennium Partnership, LLP (“Millennum”)
and owner of the Project, in the Superior Court of the District of Columbia and in this court,
seeking compensation for the personal injury and property damage that resulted from the
flooding. Id. ¶ 9.
The Resident Lawsuits resulted in the following insurance coverage and liability actions:
2200 M Street sued a number of the entities responsible for the design and construction of the
Project in the Supreme Court of New York, id. ¶ 10; Millennium sued TIG, which participated in
an Ownership Controlled Insurance Program providing general liability insurance coverage to
Millennium and 2200 M Street, along with the contractors and sub-contractors participating in
the construction of the Project, id.; and Millennium sued Firemen’s, its comprehensive general
liability carrier, seeking to compel Firemen’s to provide Millennium a legal defense and
indemnify it for any losses, id.
The insurance coverage and liability actions against the plaintiff and the defendant were
resolved in accordance with a confidential Settlement Agreement and Release (the “Settlement
Agreement”). Id. ¶ 11. In the Settlement Agreement, the plaintiff assumed the defense of
Millennium, 2200 M Street and other related entities in the Resident Lawsuits, id. ¶ 12, and, the
defendant agreed to pay the plaintiff 25% of the attorney’s fees and expenses incurred in
defending ten of the Resident Lawsuits brought against Millennium, id. ¶ 13.
In March 2008, the plaintiff filed this suit for breach of contract and a declaratory
judgment to establish the defendant’s obligation to fund 25% of the legal fees and expenses
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incurred in defending Millennium and 2200 M Street. Id. ¶ 1. On August 7, 2008, the defendant
propounded discovery on the plaintiff in the form of interrogatories and requests for production
of documents. Def.’s Mot. to Compel and/or For Sanctions (“Def.’s Mot.”) ¶ 3. Over the next
eleven months, the defendant sent numerous letters to the plaintiff requesting answers to the
interrogatories and the production of the requested documents, including the claim files and the
settlement agreements from the underlying litigation. Id. ¶ 5. The plaintiff informed the
defendant that it would not produce these documents, even though it had previously
acknowledged that such information was discoverable. Id. ¶ 6.
On September 25, 2009, the plaintiff responded to the defendant’s interrogatories and
requests for production of documents by producing the Settlement Agreement and 5,291 pages of
legal bills. Id. ¶ 7. The plaintiff did not, however, comply fully with the defendant’s requests,
claiming that a majority of the interrogatories and documents requested by the defendant were
irrelevant and implicated attorney-client privilege. Id.
On October 20, 2009, the plaintiffs filed a motion for leave to file a summary judgment
motion under seal and to place any future documents relating to the Settlement Agreement under
seal. See generally Pl.’s Mot. to Seal (“Pl.’s Mot.”). On October 23, 2009, the defendant filed a
motion to compel the plaintiff to provide full and complete responses to the interrogatories and
document requests and/or to sanction the plaintiff for failure to provide or participate in
discovery. See generally Def.’s Mot. With both motions now fully briefed, the court turns to the
parties’ arguments.
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III. ANALYSIS
A. The Court Denies Without Prejudice the Plaintiff’s Motion to File Under Seal
The plaintiff moves for leave to file its summary judgment motion under seal and to place
any future filings which discuss or disclose any of the terms or conditions of the Settlement
Agreement under seal, citing as authority Federal Rule of Civil Procedure 7 and Local Civil Rule
5.1(j). Pl.’s Mot at 1. The plaintiff asserts that its motion for summary judgment should be
sealed because it discusses and attaches the terms of the confidential Settlement Agreement. Id.
Additionally, the plaintiff argues that a seal is necessary because the motion for summary
judgment will necessarily contain confidential information. Id. The defendant counters that the
plaintiff has not satisfied its burden, having failed to provide any support or citation to any
relevant authority. Def.’s Opp’n to Pl.’s Mot. (“Def.’s Opp’n”) at 1. Specifically, the defendant
asserts that the plaintiff’s motion merely cites to the instructions regarding the general form of
sealed pleadings and the procedure for placing a matter under seal, but provides no authority
relevant to whether its summary judgment motion ought to be sealed. Id.
When considering a motion to seal, the court begins with a “strong presumption in favor
of public access to judicial proceedings.” United States ex rel. Schweitzer v. Oce, N.V., 577 F.
Supp. 2d 169, 171 (D.D.C. 2008) (quoting Equal Employment Opportunity Comm’n v. Nat’l
Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)); see also In re Sealed Case, 237 F.3d
657, 666 (D.C. Cir. 2001) (citations omitted). Although strong, this presumption is not
irrebutable. The Supreme Court has stated that “[e]very court has supervisory power over its
own records and file, and access has been denied where court files might have become a vehicle
for improper purposes.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 589 (1978) (internal
citations omitted).
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Whether the public should have access to judicial records and proceedings is a decision
“best left to the sound discretion of the trial court, discretion to be exercised in light of the
relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 599 (cited in United
States v. Hubbard, 650 F.2d 293, 316-17 (D.C. Cir. 1980)). To aid the court’s analysis, the D.C.
Circuit has established a six-factor balancing test for determining whether documents should be
sealed. These factors are:
(1) the need for public access to the documents at issue; (2) the extent to which
the public had access to the document prior to the sealing order; (3) the fact that a
party has objected to disclosure and the identity of that party; (4) the strength of
the property and privacy interests involved; (5) the possibility of prejudice to
those opposing disclosure; and (6) the purpose for which the documents were
introduced.
Johnson v. Greater Se. Cmty. Hosp., 951 F.2d 1268, 1277 n.14 (D.C. Cir. 1991) (citing Hubbard
650 F.2d at 317-22).
In the present case, the plaintiff’s motion simply asserts that the documents at issue
contain confidential information. Pl.’s Mot. at 1. Yet this assertion alone is not sufficient to
properly evaluate the instant motion under the six-part balancing test articulated by this Circuit.
See Johnstown Feed & Seed, Inc. v. Cont’l W. Ins. Co., 2009 WL 866828, at *2 (D. Colo. Mar.
26, 2009) (recognizing that a motion setting forth only that the documents at issue were
“confidential” and under the court’s protective order was not compelling enough to grant a
motion to seal). Accordingly, the court denies without prejudice the plaintiff’s motion for leave
to file its summary judgment motion under seal. See DBI Architects, P.C. v. Am. Express Travel
Related Servs. Co., 462 F. Supp. 2d 1, 7 (D.D.C. 2006) (denying a motion for leave to file under
seal because the movant failed to provide legal authority for its request); accord Interspan
Distrib. Corp. v. Liberty Ins. Underwriters, Inc., 2009 WL 2588733, at *1 (S.D. Tex. Aug. 21,
2009).
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A. The Court Denies Without Prejudice the Defendant’s Motion
to Compel and/or For Sanctions
1. Legal Standard for a Motion to Compel
Federal Rule of Civil Procedure 26(b)(1) authorizes discovery “regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . .” FED. R. CIV. P.
26(b)(1). The term relevance “is broadly construed, and “[r]elevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Id.; Food Lion, Inc. v. United Food & Commercial Workers Int’l Union,
103 F.3d 1007, 1012 (D.C. Cir. 1997); see also Smith v. Schelinger, 513 F.2d 462, 473 n.37
(D.C. Cir 1975) (noting that “a party may discover information which is not admissible at trial if
such information will have some probable effect on the organization and presentation of the
moving party’s case”). Put another way, “[a] showing of relevance can be viewed as a showing
of need for the purpose of prosecuting or defending a specific pending civil action, [as] one is
presumed to have no need of a matter not relevant to the subject matter involved in the pending
action.” Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984).
That said, relevancy does not encompass discovery of information with “no conceivable bearing
on the case.” Id. (citing 8 FED. PRAC. & PROD. 2 § 2008). A trial court enjoys considerable
discretion over discovery matters. Id.; United States v. Krizek, 192 F.3d 1024, 1029 (D.C. Cir.
1999).
2. The Court Orders the Plaintiff to Respond to the Defendant’s Discovery Requests
or to Provide a Privilege Log if Appropriate
The defendant seeks disclosure of the plaintiff’s claim files from each of the underlying
cases and information regarding the administration and handling of those suits, as well as
complete answers to the defendant’s interrogatories. Def.’s Mot. ¶ 4. The plaintiff argues that
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these documents and information are neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence because the defendant is not entitled to challenge the
reasonableness of the legal bills already paid. Pl.’s Opp’n to Def’s Mot. (Pl.’s Opp’n”) at 3.
Alternatively, the plaintiff argues that the defendant needs no additional factual information
beyond what has already been produced in order to evaluate the reasonableness of the legal bills.
Id. The plaintiff asserts that the production of the privileged communications requested by the
defendant may constitute an improper waiver of the attorney-client privilege. 1 Id. Finally, the
plaintiff argues that the defendant is not entitled to sanctions. Id.
The court notes at the outset that relevance is construed liberally, and there is no need to
assure that the information requested is itself admissible, merely that the discovery request is
reasonably calculated to lead to admissible evidence. See Food Lion, 103 F.3d at 1012. Courts
construe the scope of discovery liberally to ensure that litigation proceeds with “the fullest
possible knowledge of the issues and facts before trial,” Hickman v. Taylor, 329 U.S. 495, 501
(1947), and must balance the need for discovery against the burden imposed on the person
ordered to produce the documents. See Katz v. Batavia Marine & Sporting Supplies, Inc., 984
F.2d 422, 424 (Fed. Cir. 1993); Moore v. Hartman, 241 F.R.D. 59, 63 (D.D.C. 2007).
In applying these principles to the present case, the court is persuaded that the billing
documentation regarding the attorney’s fees charged in connection with the underlying cases is
relevant for purposes of Rule 26(b). This Circuit has established that even when attorney’s fees
1
The defendant’s requests include, but are not limited to:
Correspondence between [the plaintiff] and the attorneys defending the
underlying claims regarding the underlying bills and any nonpayment or
reduction[n] of the same . . . [a]ny litigation budgets or cost estimates prepared
by the attorneys defending the underlying litigation . . . [a]ny correspondence
between [the plaintiff] and the attorneys defending the underlying litigation
regarding billing practices, invoices, and payment of defense costs.
Def.’s Mot. ¶ 9.
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are stipulated in an agreement, the trial court may still inquire into the reasonableness of the fees
claimed. 2 Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143, 150 (D.C. Cir. 1997).
Accordingly, despite the plaintiff’s argument that the information requested by the defendant is
not probative of any issue in this litigation, given that the present matter is centered around legal
bills, the discovery propounded on the plaintiff could reasonably result in the production of
admissible evidence pertaining to the reasonableness of the contested bills and is thus relevant.
See id. at 152. Therefore, the benefits gained by the defendant in having access to additional
facts and knowledge regarding the billing practices of the plaintiff outweigh the burden placed
on the plaintiff in gathering the requested information. 3 See Moore, 241 F.R.D. at 63-64
(explaining that any risk of duplicative discovery or burdensomeness is outweighed by the
benefits gained from providing the opportunity to seek relevant information and explore
potentially probative matters). In effect, the court is persuaded that in this case, any burden
placed on the plaintiff is outweighed by the risk of leaving probative matters unexplored. See id.
As for the plaintiff’s argument that some of the information requested is privileged, the
court notes that Rule 26(b)(5)(ii), requires that a party claiming such a privilege “describe the
nature of the documents, communications, or tangible things not produced or disclosed – and do
so in a manner that, without revealing information itself privileged or protected, will enable other
parties assess the claim.” FED. R. CIV. P. 26(b)(5)(ii). The court also recognizes that the plaintiff
did not prepare a privilege log. Def.’s Reply in Support of Def.’s Mot. (“Def.’s Reply”) ¶ 7.
2
The court notes the plaintiff’s contention that this is simply a contractual dispute regarding the
payment of a debt and, as such, it is immaterial that the underlying debt happens to be for
attorney’s fees. Pl.’s Opp’n at 5. The plaintiff does not, however, cite a single authority to
support this distinction.
3
Although the plaintiff alleges that the defendant’s discovery requests are “unduly burdensome”
and “overly broad,” it does not provide any explanation for the undue burden or over-broadness.
See Pl.’s Opp’n at 3.
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Nevertheless, the court generally does not deem a party to have waived a privilege because it did
not provide an adequate privilege log. See Smith v. Café Asia, 256 F.R.D. 247, 251 (D.D.C.
2009) (citing United States v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003) (holding
that waiver because of failure to file a privilege log is a serious sanction most suitable for cases
of unjustified delay, inexcusable conduct and bad faith)).
In the present case, the plaintiff failed to provide a privilege log, asserting instead that the
defendant is “cognizant of the nature of the documents that the plaintiff seeks to protect from
disclosure.” Pl.’s Opp’n at 10. Yet the plaintiff’s statement does not satisfy Rule 26(b)(5)(ii),
since it does not provide any specific indication as to why providing the defendant with the
requested documents would violate the attorney-client privilege or would result in the waiver of
the privilege of its insured, Millennium. 4 Id. at 9. Accordingly, the court denies without
prejudice the defendant’s motion to compel discovery and orders the plaintiff to supply full and
complete answers to the interrogatories and to comply with all of the defendant’s document
requests or to provide a privilege log explaining why it is withholding specific documents or
information. Any document, or portion of a document, that the plaintiff withholds to maintain
privilege must be recorded in a privilege log, and adequate justification provided. 5 Because the
4
This Circuit narrowly defines privilege as “the communication from the client to the attorney and
protects only what the client says. It protects what the attorney says to the client only if it will
reveal what the client told the lawyer.” Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 209
(D.D.C. 1998). Moreover, the communication must be made “in confidence for the purpose of
obtaining legal advice from the lawyer.” Schefler v. United States, 702 F.2d 233, 245 (D.C. Cir.
1983).
5
It is worth noting that the court does not recognize an implicit attorney-client privilege in all
insured-insurer communications; instead, this privilege arises only when such communication is
for the purpose of pursuing legal representation or the procurement of legal advice. See Linde
Thomson Langworth Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1515 (D.C. Cir. 1993) (noting
that communication between the insurer and insured may be for a variety of reasons and only
communication pertaining to legal representation or the procurement of legal advice is afforded
attorney-client privilege). Accordingly, any privilege claimed by the plaintiff should adhere to
this standard.
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court denies without prejudice the defendant’s motion to compel it also denies without prejudice
its motion for sanctions based on the same conduct.
IV. CONCLUSION
For the foregoing reasons, the court denies without the prejudice the plaintiff’s motion to
seal, denies without prejudice the defendant’s motion to compel discovery and denies without
prejudice the defendant’s motion for sanctions. An Order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 22nd day of June, 2010.
RICARDO M. URBINA
United States District Judge
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Tig Insurance Company v. Firemen's Insurance Company of Washington, D.C.
Combined Opinion