United States District Court, S.D. Ohio, Western Division
L. Litkovitz, United States Magistrate Judge
April 11, 2017, the undersigned issued an Order granting in
part a Motion to Compel and for Sanctions filed by plaintiff
The William Powell Company (Powell) against defendant
OneBeacon Insurance Company (OneBeacon). (Doc. 119). The
Order directed OneBeacon to produce, among other documents,
"Communications listed on the privilege log for which
OneBeacon has asserted an attorney-client privilege but which
have been disclosed to third parties other than Resolute
[Management, Inc.] and NICO [National Indemnity
Company]." (Id. at PAGEID#: 3032, ¶ 1.v).
OneBeacon moves the Court to reconsider its ruling that
OneBeacon waived any attorney-client privilege and work
product protections by voluntarily disclosing documents to
"presumed third parties." (Doc. 128 at 1). Powell
opposes OneBeacon's motion, alleging there is no valid
basis for the Court to reconsider its prior ruling. (Doc.
130). OneBeacon has filed a reply in support of its motion.
motion to compel, Powell challenged the privilege log
OneBeacon provided on September 2, 2016 and revised on
November 10, 2016 as deficient under Fed.R.Civ.P.
26(b)(5)(A). (Doc. 98). Powell moved to compel the
disclosure of "hundreds" of communications
OneBeacon had withheld as privileged on the ground OneBeacon
had shared the documents with third parties, including
insurers who did not appear to have an attorney-client
relationship with OneBeacon, without providing any proof of a
common interest or joint defense agreement. (Doc. 98 at
PAGEID#: 1596, citing Exh. K; PAGEID#: 1607-08, citing Exh.
O, OneBeacon privilege log legend). Powell did not challenge
OneBeacon's claim of privilege as to documents OneBeacon
had shared exclusively with Resolute and NICO under a Joint
Defense Agreement those entities executed on December 3,
2014. (See Doc. 98 at PAGEID#: 1608-09, citing Exh.
B, Joseph Brunner Decl., ¶ 14, Exh. 7 at 1). Powell
challenged OneBeacon's claim of privilege only as to
documents OneBeacon had shared with third parties who are not
parties to the Joint Defense Agreement. (Doc. 98 at PAGEID#:
1608-09). Powell argued that OneBeacon had failed to satisfy
its burden to show that the attorney-client privilege was not
waived as to communications that were disclosed to Berkshire
Hathaway, Inc. (Berkshire Hathaway), Armour Risk Management,
Ltd. (Armour), National Union Fire Insurance Company
(National Union), Continental Casualty Insurance Company
(CNA), Trebuchet U.S. Holdings, Inc. (Trebuchet), Berkshire
Reinsurance Group (BerkRe), and Charles A. Wagner Co.
(Id.). Powell also noted that various information
technology service providers appeared together with these
entities on communications OneBeacon had listed on the
privilege log. (Id.).
Court upheld Powell's challenge to OneBeacon's
assertion of an attorney-client privilege for communications
shared with third parties other than Resolute and NICO,
rinding as follows:
As Powell does not challenge OneBeacon's assertion of the
attorney-client privilege as to communications shared
exclusively with Resolute and NICO, there is no dispute that
OneBeacon did not waive the privilege as to those
communications. OneBeacon has not carried its burden to show
that it is entitled to assert an attorney-client privilege as
to communications disclosed to any other third parties... .
OneBeacon has not submitted any evidence to demonstrate the
existence of a relationship between OneBeacon and any of the
other entities that would give rise to a common interest and
entitle the parties to share attorney communications without
waiving the attorney-client privilege. OneBeacon's
unsupported and conclusory assertions as to the functions of
Armour and Trebuchet and "other entities" to whom
communications have been disclosed do not suffice.
(See Doc. 104 at PAGEID#: 2161-62). OneBeacon has
waived the attorney-client privilege for documents on the
privilege log that were disclosed to third parties other than
NICO and Resolute, and OneBeacon must produce those
(Doc. 119 at PAGEID#: 3027-28).
Motion for reconsideration
now asks the Court to reconsider its ruling under
Fed.R.Civ.P. 54(b) and federal common law, which OneBeacon
argues give the Court "broad discretion" to grant
relief from interlocutory orders. (Doc. 128).
initially contends that an in camera inspection of
the documents at issue will allow the Court to ascertain
whether OneBeacon waived the attorney-client privilege by
disclosing the documents to third parties. (Doc. 128 at
PAGEID#: 3587-3588, citing cases). OneBeacon argues that even
absent an in camera inspection of the documents at
issue, it is clear that OneBeacon did not waive the
attorney-client privilege as to any of the documents by
disclosing them to third parties. Rather, OneBeacon alleges
that all of the third parties with whom the documents were
shared "fall into one or more protected
relationships." (Id. at PAGEID#: 3588).
OneBeacon identifies these parties as Armour and Trebuchet,
the "successors in interest" to OneBeacon (PAGEID#:
3589-90); David Malatesta, "Resolute-panel counsel"
for the Charles A. Wagner Co. (PAGEID# 3591-3592); Berkshire
Reinsurance Group (BerkRe), which OneBeacon states is a
functional name given to "a division of Berkshire
Hathaway's subsidiaries, including NICO and
Resolute" (PAGEID#: 3592, citing Third
Declaration of John Matosky, Exh. 1) (emphasis added by
OneBeacon); and technology vendors who allegedly functioned
as OneBeacon's agents (PageID#: 3593-94). (Doc. 128).
OneBeacon asserts that the entries in its privilege log
confirm that it did not communicate with National Union or
CNA. (Id. at PAGEID#: 3589-90).
argues that while courts have discretion to reconsider
interlocutory orders, such relief is extraordinary in nature
and should be granted sparingly to promote the interest of
finality in Court rulings. (Doc. 130 at PAGEID#: 3634).
Powell alleges that OneBeacon has not satisfied the standard
for reconsideration in this case because the evidence
OneBeacon has submitted in support of its motion is not
"new" evidence that was previously unavailable to
it. (Id. at PAGEID#: 3634-3635). Powell alleges that
even if the Court were to consider the evidence submitted by
OneBeacon, that evidence does not show that OneBeacon was
entitled to withhold on grounds of privilege communications
that OneBeacon disclosed to third parties. Powell contends
that OneBeacon has not shown that communications with
National Union are protected by an attorney-client privilege
(PAGEID#: 3637); OneBeacon's allegations are insufficient
to establish a common legal interest between Armour/Trebuchet
and OneBeacon (PAGEID#: 3637-3639); and in contradiction to
its current representations, OneBeacon previously identified
BerkRe as a separate entity from NICO and Resolute (PAGEID#:
3640-41). (Doc. 130). Powell further disputes OneBeacon's
contention that this Court is required to conduct an in
camera review of the documents in issue because federal
law governs the procedure the Court follows in deciding which
documents are privileged. (Id. at PAGEID#: 3636,
Standard of review
motion for reconsideration of the Court's interlocutory
order on Powell's motion to compel and for sanctions is
reviewable under Fed.R.Civ.P. 54(b) and the common law.
Rodriguez v. Tern. Laborers Health & Welfare
Fund, 89 Fed.Appx. 949, 959 (6th Cir. 2004) (quotation
omitted); see also Hiles v. Army Rev. Bd. Agency,
No. 1:12-cv-673, 2015 WL 4778831, at *16 (S.D. Ohio Aug. 13,
2015) (Report and Recommendation), adopted, 2016 WL
561186 (S.D. Ohio Feb. 12, 2016). A district court has the
implicit authority under both common law and Rule 54(b) to
"reconsider interlocutory orders and to reopen any part
of a case before entry of final judgment."
Rodriguez, 89 Fed.Appx. at 959. Although district
courts are permitted to "afford such relief from
[interlocutory orders] as justice requires," courts
"traditionally . . . will find justification for
reconsidering interlocutory orders when there is (1) an
intervening change of controlling law; (2) new evidence
available; or (3) a need to correct a clear error or prevent
manifest injustice. Id. (citations omitted);
Louisville/Jefferson Co. Metro Gov't v.
Hotels.com L.P., 590 F.3d 381, 389 (6th Cir.
2009); Hiles, 2015 WL 4778831, at *16. See also
Northeast Ohio Coalition for Homeless v. Brunner, 652
F.Supp.2d 871, 877 (S.D. Ohio 2009) ("Motions for
reconsideration are not intended to relitigate issues
previously considered by the Court or to present evidence
that could have been raised earlier.").
Request for in camera inspection
initial matter, OneBeacon argues that an in camera
review of the documents at issue will resolve whether it is
entitled to withhold those documents under the
attorney-client privilege. (Doc. 128 at PAGEID#: 3587-3588).
OneBeacon argues that Ohio law "requires a court
deciding issues of privilege to conduct an in camera
inspection to determine the extent to which the privilege
applies or has been waived before ordering a party to produce
information that is claimed to be privileged."
(Id.). It is not clear whether the gist of
OneBeacon's argument is that the Ohio requirement is
binding on a federal court tasked with determining the
applicability of the Ohio attorney-client privilege in a case
before it or whether OneBeacon is simply urging the Court to
follow Ohio procedures in this regard. To the extent
OneBeacon argues that an in camera review is
mandatory, the Court rejects its argument as unsupported.
OneBeacon has not cited any cases to show that Ohio's
in camera review requirements are binding on federal
courts. Further, the holdings of the cases OneBeacon cites do
not support its position that an Ohio court must conduct an
in camera review whenever an attorney-client
privilege is asserted. Instead, the holdings of the cases
OneBeacon cites are more limited than this broad proposition.
See In re Subp. Duces Tecum Served Upon Atty. Potts,
796 N.E.2d 915, 916 syll. ¶ 2 (Ohio 2003) (holding in
the context of a criminal proceeding that an in
camera review is required whenever a privilege is
asserted as to subpoenaed documents); Peyko v.
Frederick, 495 N.E.2d 918, 919 syll. ¶ 2 (Ohio
1986) and Moskovitz v. Mt. Sinai Med. Or., 635
N.E.2d 331, 351 (Ohio 1994) (holding that an in
camera review is required to determine which documents
in a claims file are privileged if a plaintiff who has
obtained a judgment files a motion for prejudgment interest
under Ohio Rev. Code § 1343.03 and the defense asserts
the attorney-client privilege with regard to the contents of
the claims file). Cf. In re Antitrust Grand Jury,
805 F.2d 155, 168 (6th Cir. 1986) (holding that an in
camera review is required where district court was
required to review the documents to determine if they were
subject to a subpoena under the crime-fraud
exception). None of the circumstances or holdings of
these cases apply here.
Court found in its prior Order that an in camera
review was not warranted and instead formulated a set of
rules to be applied in determining whether categories of
documents withheld by OneBeacon were protected by the
attorney-client privilege or under the work product doctrine.
OneBeacon has proffered no reason for the Court to reconsider
its prior ruling in this regard. The Court declines to
revisit its prior decision and will not conduct an in
camera review of the third-party documents it previously
held were not entitled to protection under the
Consideration of ...