Commercial Litigation and Arbitration

Mere Testimony or Interrogatory Answer that Party Relied on Advice of Counsel Does Not Waive Privilege as Long as No Affirmative Defense of Advice of Counsel Is Asserted

BancInsure, Inc. v. Peoples Bank of the South, 2012 U.S. Dist. LEXIS 5326 (S.D. Miss. Jan. 18, 2012):

Peoples Bank does not contest specific documents identified on the privilege log. Rather, it makes a blanket argument that the attorney-client privilege is waived for all withheld documents based BancInsure's assertion of reliance on advice of counsel. A review of the withheld documents confirms that the documents at issue are protected by the attorney-client privilege. Without revealing privileged material, the court notes that the documents generally consist of communications to/from outside counsel regarding legal issues and litigation strategy. Indeed, many of the documents at issue were created after this lawsuit was filed.

BancInsure has not raised, and represents that it does not intend to raise reliance on the advice of counsel as an affirmative defense to Peoples Bank's allegations in its counterclaim. As Peoples Bank points out, BancInsure's Rule 30(b)(6) representative testified that Peoples Bank relied on counsel in determining whether to accept or deny coverage for the claims, and BancInsure's discovery responses indicate that outside counsel was involved in determining that the claims were not covered. However, with both the deposition testimony and the interrogatory responses, the statements were made in response to questions posed by Peoples Bank's counsel. The mere fact that an insurance company hires outside counsel to write a coverage opinion does not result in the waiver of the attorney-client privilege. See Aull v. Cavalcade Pension Plan, 185 F.R.D. 618, 630 (D. Colo. 1998) (finding no waiver of the attorney-client privilege where the defendants did not affirmatively assert good faith or reliance on the advice of counsel in defending against the plaintiff's claims; "the fact that Defendant . . . has stated in deposition testimony that the Plan Committee relied on advice of counsel in denying Mr. Aull's claim does not establish an at issue waiver as to this advice. This statement alone does not indicate that the Defendants have taken affirmative action to place the advice of the Plan Committee's counsel at issue"). Based on the foregoing, the court finds no waiver of the attorney-client privilege.

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