No Work Product Privilege Among Potential Adversaries

• Published date: 16 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Morvillo Abramowitz Grand Iason & Anello
• Author: Mr Edward M. Spiro and Christopher B. Harwood

When parties with a common interest share attorney work product with each other in anticipation of litigation, the parties often expect that the work product will be immune from disclosure in the subsequent litigation. If, however, a party shares work product with another party with whom it has a common interest but also is a potential adversary, the work product may be discoverable by third parties, notwithstanding that the sharing parties had a common interest at the time they exchanged the work product

U.S. Magistrate Judge Gabriel W. Gorenstein for the Southern District of New York recently addressed this exact issue in Pilkington N. Am. v. Mitsui Sumitomo Ins. Co. of Am., 341 F.R.D. 10, 16 (S.D.N.Y. 2022). Prior to the litigation, the eventual plaintiff, Pilkington North America, exchanged attorney work product with its insurance broker, Aon Risk Services Central, with which it shared a common interest at the time, but which it later named as a defendant in the action. Notwithstanding the common interest, Judge Gorenstein held that the work product was discoverable by the other defendant in the action, Mitsui Sumitomo Insurance Company of America (MSI), because (1) when the documents were exchanged, Aon and Pilkington were foreseeable adversaries and (2) the work product concerned the subject matter of the potential dispute between the parties. The ruling bespeaks caution to parties considering sharing work product with a party who may later become an adversary.

'Pilkington v. MSI & Aon'

In 2009, plaintiff Pilkington purchased insurance from defendant MSI with the aid of Pilkington's insurance broker, defendant Aon. The insurance policy originally provided coverage of up to more than $300 million for damages caused by windstorms. In 2015, MSI sought certain changes to the insurance policy, one of which would cap the policy limit for damages caused by windstorms at $15 million. According to the complaint, Pilkington accepted the changes to the policy only after Aon advised Pilkington that the changes would not affect the windstorm limit.

In February 2017, a tornado struck Pilkington's Illinois factory, allegedly causing damages of up to $100 million. The day after the tornado, Pilkington sought coverage under its insurance policy with MSI. In response, Aon alerted Pilkington that the insurance policy limited windstorm losses to $15 million. Shortly thereafter, Pilkington retained Aon as a consultant to assist Pilkington in preparing an insurance claim...