This is a story that ends with two motions, a motion for reconsideration and an "unopposed emergency motion" to reseal some documents in a Court file. But nothing wonderful can come from this story unless we begin at the beginning.
The plaintiff, Golon, Inc., formerly known as Golon Masonry Restoration, Inc., sued its liability carrier for alleged bad faith and breach of contract under two liability policies. Our story begins with these basic facts reported in Golon, Inc. v. Selective Ins. Co., No. 17cv0819, 2017 WL 6397447 (W.D. Pa. December 14, 2017). Golon alleged ...
... that Selective engaged in “bad faith, high risk, [and] brinkmanship negotiation strategy,” (ECF 1-1 at ¶ 41), when Selective continually refused to settle the underlying state court case within the total two-policy limits of $11 million, rejected its initial, well-respected trial attorney's advice, and tried the case to a jury verdict of $32 million.
Golon served a request to produce certain documents. Selective responded to the request by withholding thousands of pages under a claim of "mediation privilege." A close reading of the opinion reveals that at least some of the documents "derived from the pre-trial conciliation before Judge Lutty, the presiding trial judge in the underlying state court matter."
Golon filed a motion to compel.
Selective filed a motion for protective order addressing its claim, again, of mediation privilege.
The District Court granted and denied both of the competing discovery motions, in part. The Court advised the parties and their counsel that the Court had reviewed the "withheld and/or redacted documents" in camera, that the Court holds the mediation privilege in the highest esteem in essence, and still out of the thousand-plus pages the Court held "that the mediation privilege asserted by Selective was not applicable to almost all of the documents it had either withheld or redacted[.]"
The Court accordingly ordered that all of the documents be unsealed but three of them, which were the only three documents among the bunch that were "properly withheld and/or redacted[.]"
Selective's attorneys filed an "unopposed emergency motion" to reseal the documents which the Court had just ordered unsealed. In Selective's emergency motion, its attorneys argued "that Selective's attorney-client privilege and/or work product doctrine are being violated with this Court's ordered production."
The Court had ordered that Selective's production take place no later than Noon on December 11, 2017.
At five minutes after Noon on December 11, 2017, Selective's attorneys filed a motion for reconsideration of the Court's order.
Selective's attorneys "openly stated" later, in a Brief they filed in support of Selective's motion for reconsideration, that Selective "would only produce" certain documents, because Selective "would file a Motion for Reconsideration as to the mediation privilege documents the Court had ordered produced." {Emphasis in original and by the Court.)
That brings us closer to the climax of our Christmas story. "The Court will now DENY Selective's Motion for Reconsideration finding that there is no basis to grant such a Motion."
The Court expanded on its ruling, finding a basis to deny such a motion. Actually, the Court found three bases for denying Selective's motion:
- Under the federal standard governing motions for reconsideration, this one was simply not well taken in the eyes of the Court.
- Repeating that the Court "considers the mediation privilege a very important privilege in jurisprudence," the Court wrote that the Pennsylvania mediation privilege simply does not apply to the documents "such as the reports and emails prepared and exchanged by and among Selective's insurance employees about Golon's (the insured's) underlying mediation[.]" The Court put the same thing another way, observing that "the content of the documents at issue do not fall within the definition of 'mediation communications' which Pennsylvania's mediation privilege protects."
- Someone apparently thought that it was a good idea to tell the Judge that they thought that he, the Judge, did not review the documents in question.
The Judge basically pointed out that this claim was unfounded, it would be fair to say:
The Court notes that it reviewed every document which was provided to the Court for its in camera inspection and found three documents which met the requirements established by Pennsylvania's mediation privilege statute, 42 P.A.C.S.A. § 5949. This Court held that none of the other documents met the criteria set forth in Pennsylvania's mediation privilege statute. Accordingly, just because the Court addressed these documents along with the all the others, and did not single them out as pre-trial conciliation documents as Selective would have preferred, is not a basis for reconsideration; and thus, the Court will deny the Motion for Reconsideration for this reason as well.
(Emphasis again in original and by the Court.)
The Court was not done. There remained the matter of the unopposed emergency motion to reseal the documents previously ordered unsealed by the Court.
To begin with, the Court found that the emergency motion to reseal was "nothing more than a creatively styled Motion for Reconsideration." A motion for reconsideration by any other name would smell as sweet, apparently, for the emergency motion to reseal was also denied.
In denying the emergency motion to reseal, the Court carefully pointed out that the attorney-client privilege and/or work product doctrine that were discussed in it "were never briefed or discussed in Selective's Motion to Compel / Selective's Motion for Protective Order." (Emphasis yet again in original and by the Court.)
"Moreover," of all the documents ordered to be produced, "only seven documents" on Selective's privilege log were written with notations "that attorney-client privilege and/or work product doctrine apply."
So, in the end, for two reasons the emergency motion to reseal that Selective's attorneys filed on its behalf was denied: First, "any argument" as to attorney-client privilege or work product "were, and are, deemed waived."
Second, "based on the information and current record which has been provided to the Court, the Court finds that Selective failed to meet its burden of proving that it is entitled to redact and/or withhold documents" on the basis either of attorney-client privilege or work product.
Still, the Court was not finished with its labors with respect to these discovery issues. The Court's Order denying the motion for reconsideration and denying as moot the emergency motion, was entered during the work day on Thursday, December 14, 2017.
At 10:00 the following morning, or on Friday, December 15, 2017, the Court ordered "Selective to produce the documents" it was ordered to produce to Golon.
Dennis Wall is at work on a forthcoming book about Concealed Evidence and Secret Settlements. The Golon v. Selective decision discussed in this article also addressed arguments that the withheld documents should be resealed because the motion to reseal them was "unopposed." This aspect of the case will be discussed in a separate article on Insurance Claims and Issues tomorrow.
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