Regence Group v. TIG Specialty Insurance Company

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

Submitted by Joseph Monahan*

Date Promulgated: February 4, 2010

Regence Group v. TIG Specialty Insurance Company, 2010 WL 476646 (D. Or. Feb. 4, 2010)

Court: U.S. District Court for the District of Oregon

Issue Decided: Are documents reflecting communications between cedent and its reinsurer, including those exchanged as part of a previous arbitration between them, subject to discovery?

Key Holding

The court denied the defendant insurer’s motion to reconsider its previous ruling, denying the its motion for a protective order that would have shielded from discovery documents relating to positions the insurer had taken with its reinsurer, both in the ordinary course of their business dealings, and in arbitrations between the insurer and reinsurer. The court noted that an insurer waives whatever privilege might otherwise attach when it shares privileged documents with a reinsurer when the parties’ interests are not aligned. Moreover, the court refused to set temporal parameters on the requested discovery based on when the dispute between the cedent and reinsurer first arose or when it was ultimately resolved. The court thus reaffirmed its earlier determination that the following documents were subject to discovery:

1. a) reinsurance policies defendant had purchased covering the underlying policy at issue;
2. b) documents exchanged between cedent and reinsurer about the underlying litigation;
3. c) documents relating to coverage for the underlying litigation exchanged in the arbitration context with the reinsurer, or submitted to the arbitrators; and
4. d) documents relating to payments received by the cedent from its reinsurers in connection with settlement of claims relating to the underlying litigation.

Key Takeaways

To the extent there might otherwise be a commonality of interest that would allow for the exchange of documents and information between cedent and reinsurer without waiver of applicable privilege, the same considerations do not apply where the interests of the reinsurer and the reinsured are not aligned. In that event, discovery could potentially include arbitration materials.

* 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.