Hawker v. BancInsurance, Inc.

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

Submitted by Amy Kline*

Date Promulgated: December 27, 2013

Hawker v. BancInsurance, Inc., No. 1:12-cv-01261-SAB, 2013 WL 6843088 (E.D. Cal. Dec. 27, 2013)

Court: United States District Court for the Eastern District of California

Issue Decided: Are documents reflecting communications between cedent and its reinsurer subject to discovery, or does the common interest doctrine operate to shield the same?

Key Holding              

When the plaintiff insured sought to compel the defendant insurer to produce correspondence between the insurer and its reinsurer providing period reports on the status of the litigation that were prepared and edited by counsel, the court denied the motion. In so doing, the court found that under California law, “[w]here reinsurance documents include attorney-client privileged work product communications they would be entitled to the same protection as would similar communications between the ceding insurer and its attorneys handling the insured’s claim.” This was because California law requires an insurer to communicate to the reinsurer “all the representations of the original insured, and also all the knowledge and information he possesses, whether previously or subsequently acquired, which are material to the risk.” Therefore, “[t]o the extent that communication with the reinsurance company includes attorney-client information, the documents are not discoverable and [the insurer] has not waived its privilege by communication with the reinsurers.”

Key Takeaways

Under California law, communications between a cedent and reinsurer that attorney-client privileged work product communications are not discoverable, and a cedent/insurer does not waive the privilege by communicating with reinsurers.

* 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.