OneBeacon America Insurance Company, Plaintiff, v. Certain London Market Insurance Companies, Nominal Defendants–Appellants. (2025)

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about April 23, 2024, which denied plaintiffs insurers’ motion to disaffirm a portion of a special discovery master's order and to compel defendant NL Industries, Inc. to produce internal documents and communications related to the subject matters addressed in affidavits of its general counsel, and denied plaintiffs insurers’ motion to supplement the record on the motion to disaffirm and compel, unanimously affirmed, with costs.

Supreme Court properly found that no “at issue” waiver of privilege occurred, as NL Industries did not affirmatively place the subject matter of its own privileged communications at issue in the litigation (see Deutsche Bank Trust Co. of Ams. v. Tri–Links Inv. Trust, 43 A.D.3d 56, 63, 837 N.Y.S.2d 15 [1st Dept. 2007]).  Therefore, the insurers were not entitled to invade NL Industries’ attorney-client or work product privileges.  Despite the insurers’ position otherwise, the statements in the affidavits of NL Industries’ general counsel, submitted in opposition to insurers’ summary judgment motion, are not privileged.  Indeed, as Supreme Court aptly noted, some of the statements are not even legal in nature, but are merely factual.  The statements that the insurers point to concern policy language, dictionary definitions, evidence presented at the trial underlying this coverage action, and various court decisions, none of which serve to waive the attorney-client privilege.  Furthermore, even assuming that the general counsel's statements involve any privilege, the insurers fail to show that “invasion of the privilege is required,” or that applying “the privilege would deprive” the insurers of “vital information” (id.;  see also Talos Capital Designated Activity Co. v. 257 Church Holdings LLC, 215 A.D.3d 609, 610, 187 N.Y.S.3d 625 [1st Dept. 2023];  2138747 Ontario Inc. v. Lehman Bros. Holdings, Inc., 210 A.D.3d 412, 413, 176 N.Y.S.3d 636 [1st Dept. 2022]).

The excerpt from a deposition transcript submitted in support of the insurer's motion to supplement the record does not change our conclusion (see e.g. Credit Suisse First Boston v. Utrecht–America Fin. Co., 27 A.D.3d 253, 254, 811 N.Y.S.2d 32 [1st Dept. 2006]).