MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter comes before the Court on Plaintiffs' Motion to Compel PNC Bank to Produce Insurance Policies and Related Communications [ECF No. 2417]. After conducting an in camera review of documents provided by PNC Bank, the Court finds as follows.
The Court will not require disclosure of the communications between PNC Bank and its insurers. As a preliminary matter, nothing contained in the communications is relevant1 to the claims or defenses in this matter, or more specifically, to the issues raised in post-judgment motions. These communications include the opinions of attorneys and discussions between PNC Bank and its insurers to keep the insurer informed on the details of the lawsuit and to determine coverage under certain policies. This has no bearing on any matter pending before this Court. See Potomac Elec. Power Co. v. Cal. Union Ins. Co., 136 F.R.D. 1, 3 (D.D.C. 1990) (finding correspondence with insurance company lacks sufficient indicia of relevance); Gulf Ins. Co. v. Skyline Displays Inc., No. 02-CV-3503(DSD/SRN), 2003 U.S. Dist. LEXIS 26511 at 13 (D. Minn. Oct. 20, 2003) (same); Excelsior College v. Frye, 233 F.R.D. 583, 586 (S.D. Cal. 2006) (same). Further, many of the communications are protected by attorney-client privilege or the work-product doctrine.
Missouri has recognized an insurer-insured privilege which falls within the attorneyclient privilege. State ex rel. Cain v. Barker, 540 S.W.2d 50, 53 (Mo. en banc 1976).2 However, it requires an existing insured-insurer relationship, where the insurer is obligated to defend and indemnify the insured and the insured is obligated to report covered incidents to the insurer. May Dep't Stores Co. v. Ryan, 699 S.W.2d 134, 136 (Mo. Ct. App. 1985); see also Barker, 540 S.W.2d at 53. While the Court believes the policy3 behind the insurer-insured privilege extends to situations such as this where an insured is required to report a covered incident to the insurer, it declines to extend the insurer-insured privilege beyond the boundaries set by the Missouri state courts when it is not necessary to do so.
For those communications protected by attorney-client privilege, generally a party waives attorney-client privilege if communications are shared with a third party. However, there is no waiver "where the third party shares a common interest in the outcome of the litigation and where the communication in question was made in confidence." Lipton Realty, Inc. v. St. Louis Housing Authority, 705 S.W.2d 565, 570 (Mo. Ct. App. 1986).4 It is undeniable the communications were made in confidence as both PNC and the insurer signed confidentiality agreements. PNC and its insurer also share a common interest in the outcome of the litigation. An insurer certainly does not wish for an adverse judgment against one if it's insured, even when there is a chance they will not have to provide coverage. The vast majority of the communications between PNC's legal counsel and its insurers are protected. Attached to this order, as Exhibit A, is a list of each communication provided and the Court's determination of whether it is protected by attorney-client privilege.5
The Court has reviewed each document submitted and determined all of the documents lack relevance. Additionally, the Court has analyzed if each document is protected by attorneyclient privilege, and a large majority of the documents are protected. The Court will not require disclosure of any of these communications. Those determined to be not privileged are not relevant to the matters before the Court.
On the issue of imposition of sanctions, the Court will hear oral argument from the parties on whether sanctions are appropriate and the appropriate amount of sanctions, if any. The Court will hear argument on this issue at the post-judgment motions hearing schedule for August 24-26, 2015.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel PNC Bank to Produce Insurance Policies and Related Communications [ECF No. 2417] is DENIED, in part. So Ordered this 12th day of August, 2015.
EXHIBIT A
A given communication may not be protected from disclosure for several principal reasons, nine of which the Court has identified:
(1) the communication concerned only underlying facts, and the communication was not shared in order to solicit legal advice;
(2) disclosure of the communication to a third party waived its protection;
(3) no attorney was involved with the communication and the communication did not reflect privileged advice from an attorney;
(4) any attorney involvement was merely as a passive recipient of the communication;
(5) the attorney's advice was not legal in nature;
(6) the communication was not made for the purpose of obtaining the attorney's legal advice;
(7) the communication was made by an employee to whom the privilege does not extend;
(8) the communication was not intended to be confidential; and
(9) the document is attorney work produce, but the party seeking production has demonstrated that the communication is discoverable.
Next to each ruling lists a corresponding number to the principle referenced.
Document Ruling Reasoning
Letter 10-14-09 Not Privileged 1
Letter 10-26-09 Work Product
Letter 10-26-09 Work Product
Letter 10-27-09 Not Privileged 1, 6
Letter 10-27-09 Not Privileged 1, 6
Letter 10-29-09 Not Privileged 1, 6
Letter 10-29-09 Not Privileged 1, 6
Letter 11-11-09 Not Privileged 1, 6
Letter 12-10-09 Not Privileged 1, 6
Letter 12-18-09 Not Privileged 1, 6
Letter 01-05-10 Not Privileged 1, 6
Letter 04-22-10 Privileged
Letter 01-14-15 Privileged
Letter 01-22-15 Privileged
Letter 01-22-15 Privileged
Letter 01-27-15 Privileged
Letter 02-10-15 Privileged
Letter 03-10-15 Privileged
Letter 03-10-15 Privileged
Letter 03-17-15 Work Product
Letter 03-30-15 Privileged
Letter 07-09-15 Privileged
OPW 1 Work Product
OPW 3 Work Product
OPW 5 Copy of Court's Opinion
OPW 19 Copy of Court's Opinion
OPW 49 Work Product
OPW 51 Copy of Court's Opinion
OPW 65 Copy of Court's Opinion
OPW 95 Work Product
OPW 96 Work Product
OPW 103 Work Product
OPW 104 Work Product
OPW 123 Not Work Product
OPW 124 Work Product
OPW 131 Work Product
OPW 172 Work Product
OPW 191 Work Product
OPW 193 Work Product
OPW 195 Work Product
OPW 198 Copy of Court's Opinion
OPW 202 Work Product
OPW 205 Copy of Court's Opinion
OPW 226 Work Product
OPW 229 Work Product
OPW 233 Work Product
OPW 236 Work Product
OPW 239 Work Product
OPW 243 Work Product
OPW 245 Work Product
OPW 250 Work Product
OPW 256 Work Product
OPW 262 Work Product
OPW 264 Work Product
OPW 266 Work Product
OPW 271 Work Product
OPW 272 Work Product
OPW 274 Work Product
OPW 276 Work Product
OPW 278 Work Product
OPW 281 Work Product
OPW 284 Work Product
OPW 287 Work Product
OPW 290 Work Product
OPW 292 Work Product
OPW 295 Work Product
OPW 298 Work Product
OPW 301 Work Product
OPW 305 Work Product
OPW 308 Work Product
OPW 312 Work Product
OPW 317 Work Product
OPW 320 Work Product
OPW 324 Work Product
OPW 327 Work Product
OPW 329 Work Product
OPW 331 Work Product
OPW 334 Work Product
OPW 336 Work Product
OPW 338 Work Product
OPW 341 Work Product
OPW 344 Work Product
OPW 354 Work Product
OPW 356 Work Product
OPW 359 Work Product
OPW 369 Work Product
OPW 373 Work Product
OPW 375 Work Product
OPW 387 Work Product
OPW 390 Work Product
OPW 393 Work Product
OPW 396 Work Product
OPW 397 Work Product
OPW 438 Work Product
OPW 439 Work Product
OPW 440 Work Product
OPW 442 Work Product
OPW 444 Copy of Court's Opinion
OPW 458 Copy of Court's Opinion
OPW 488 Work Product
OPW 490 Work Product
Email 1 Not Privileged 1
Email 3 Privileged
Email 8 Not Privileged 1
Email 9 Privileged
Email 11 Not Privileged 1
Email 13 Privileged
Email 18 Privileged
Email 21 Privileged
Email 24 Privileged
Email 29 Privileged
Email 30 Not Privileged 1
Email 31 Privileged
Email 36 Privileged
Email 37 Privileged
Email 38 Privileged
Email 46 Privileged
Email 51 Privileged
Email 55 Privileged
Email 59 Privileged
Email 61 Not Privileged 1
Email 62 Privileged
Email 66 Privileged
Email 70 Not Privileged 1
Email 72 Not Privileged 1
Email 75 Work Product
Email 76 Privileged
Email 77 Work Product
Email 78 Privileged
Email 79 Privileged
Email 80 Work Product
Email 83 Work Product
Email 84 Privileged
Email 128 Privileged
Email 130 Privileged
Email 133 Privileged
Email 135 Privileged
Email 137 Privileged
Email 140 Privileged
Email 142 Not Privileged 1
Email 143 Not Privileged 1
Email 144 Not Privileged 1
Email 145 Work Product
Email 149 Privileged
Email 151 Privileged
Email 152 Work Product
Email 154 Privileged
Email 156 Not Privileged 1
Email 158 Not Privileged 1
Email 160 Not Privileged 1
Email 162 Not Privileged 1
Email 164 Not Privileged 1
Email 166 Not Privileged 1
Email 168 Not Privileged 1
Email 170 Not Privileged 1
Email 172 Not Privileged 1
Email 175 Not Privileged 1
Email 179 Privileged
Email 183 Privileged
Email 187 Privileged
Email 194 Privileged
Email 197 Privileged
Email 202 Privileged
Email 208 Privileged
Email 227 Not Privileged 1
Email 229 Not Privileged 1
Email 231 Privileged
Email 233 Privileged
Email 234 Privileged
Email 236 Not Privileged 1
Email 238 Not Privileged 1
Email 239 Not Privileged 1
Email 240 Not Privileged 1
Email 242 Work Product
Email 247 Privileged
Email 249 Work Product
Email 254 Privileged
Email 257 Privileged
Email 260 Not Privileged 1
Email 261 Not Privileged 1
Email 262 Not Privileged 1
Email 263 Privileged
Email 264 Privileged
Email 271 Not Privileged 1
Email 272 Work Product
Email 286 Work Product
Email 302 Privileged
Email 303 Not Privileged 1
Email 304 Privileged
Email 307 Privileged
Email 308 Privileged
Email 309 Privileged
Email 311 Privileged
Email 312 Privileged
Email 313 Privileged
Email 315 Privileged
Email 316 Privileged
Email 319 Privileged
Email 320 Privileged
Email 321 Privileged
Email 323 Work Product
Email 337 Work Product
Email 342 Privileged
Email 343 Privileged
Email 346 Privileged
Email 348 Privileged
Email 349 Privileged
Email 354 Privileged
Email 355 Privileged
Email 358 Work Product
Email 363 Privileged
Email 365 Privileged
Email 367 Privileged
Email 376 Privileged
Email 377 Privileged
Email 383 Privileged
Email 384 Privileged
Email 387 Work Product
Email 401 Not Privileged Ins. Policy
Email 489 Privileged
Email 491 Privileged
Email 493 Privileged
Email 494 Work Product
Email 497 Not Privileged 1
Email 498 Privileged
Email 500 Privileged
Email 503 Privileged
Email 505 Privileged
Email 506 Privileged
Email 508 Privileged
Email 509 Privileged
Email 510 Privileged
Email 512 Privileged
Email 514 Privileged
Email 515 Privileged
Email 517 Privileged
Email 519 Not Privileged 1
Email 521 Privileged
Email 522 Privileged
Email 523 Not Privileged 1
Email 525 Not Privileged 1
Email 557 Privileged
Email 559 Privileged
Email 561 Privileged
Email 563 Privileged
Email 564 Privileged
Email 565 Not Privileged 1
Email 566 Privileged
Email 568 Work Product
Email 573 Work Product
Email 577 Work Product
Email 582 Privileged
Email 584 Privileged
Email 586 Privileged
Email 588 Not Privileged 1
Email 589 Privileged
Email 590 Not Privileged 1
Email 591 Not Privileged 1
Email 593 Privileged
Email 595 Privileged
Email 597 Privileged
Email 599 Privileged
Email 601 Privileged
Email 603 Privileged
Email 605 Privileged
Email 607 Not Privileged 1
Email 608 Work Product
Email 610 Work Product
Email 630 Privileged
Email 631 Privileged
Email 633 Privileged
Email 634 Work Product
Email 637 Privileged
Email 641 Privileged
Email 643 Privileged
Weav. 1 Privileged
Weav. 6 Privileged
Weav. 17 Privileged
Weav. 19 Privileged
Weav. 21 Privileged
Weav. 24 Privileged
Weav. 25 Privileged
Weav. 28 Privileged
Weav. 32 Privileged
Weav. 36 Privileged
Weav. 38 Privileged
Weav. 43 Privileged
Weav. 49 Privileged
Weav. 54 Privileged
Weav. 59 Privileged
Weav. 60 Privileged
Weav. 62 Privileged
Weav. 64 Privileged
Weav. 67 Privileged
Weav. 69 Privileged
Weav. 71 Privileged
Weav. 75 Privileged
Weav. 76 Privileged
Weav. 81 Privileged
Weav. 89 Privileged
Weav. 91 Privileged
Weav. 92 Privileged
Weav. 93 Privileged
Weav. 96 Privileged
Weav. 99 Privileged
Weav. 101 Privileged
Weav. 104 Privileged
Weav. 106 Privileged
Weav. 108 Privileged
Weav. 111 Privileged
Weav. 115 Privileged
Weav. 116 Privileged
Weav. 118 Privileged
Weav. 120 Privileged
Weav. 123 Privileged
E-Room 1 Privileged
E-Room 3 Privileged
E-Room 4 Privileged
E-Room 5 Privileged
Fees 1 Privileged
Fees 2 Privileged
Fees 3 Privileged
Conf. Ag. 1 Work Product
Conf. Ag. 2 Work Product
Conf. Ag. 3 Work Product
Conf. Ag. 4 Work Product
Conf. Ag. 5 Work Product
Conf. Ag. 6 Work Product
Conf. Ag. 7 Work Product
Conf. Ag. 8 Work Product
Conf. Ag. 9 Work Product
Conf. Ag. 10 Work Product
Conf. Ag. 11 Work Product
Conf. Ag. 12 Work Product
Conf. Ag. 13 Work Product
