eDiscovery Daily Blog

Court Observes “Timing is Everything” in Determining When Litigation is Anticipated: eDiscovery Case Law

Yesterday, I noted that COVID-19 is impacting several courts and closing many – at least for now.  But, I also noted that we still have several cases we can cover from earlier this year regarding eDiscovery.  Here’s one.

In Noah’s Wholesale, LLC v. Covington Specialty Ins., No. 19-24845-CIV-COOKE/GOODMAN (S.D. Fla. March 13, 2020), Florida Magistrate Judge Jonathan Goodman ruled that the defendant “anticipated litigation approximately midway between the two extreme positions urged by the clients” after reviewing in camera the filed-under-seal documents for which the defendant asserted work product protection.

Case Background

In this theft-of-business-property insurance claim case, each party had a significantly different view about the time of when the defendant first anticipated litigation. The defendant contended it anticipated litigation immediately upon receipt of the plaintiff’s notice of its loss, while the plaintiff contended that the defendant did not anticipate litigation until the lawsuit was filed, more than a year after the first loss notice was provided.

At the discovery hearing on the defendant’s claim of work product protection over the insurance claim file at issue, defense counsel presented several potential dates (starting with the earliest in time) that could conceivably be the date when the work product doctrine was to be established for the plaintiff’s claim file and filed an affidavit of the litigation specialist assigned to the subject claim, in support of its various potential dates for beginning the work product protection over the claim file.  Judge Goodman, while noting that her affidavit does not explain what legal training, if any, she has received to be a “litigation specialist”, then proceeded to review filed-under-seal documents in camera to evaluate against those dates.

Judge’s Ruling

Judge Goodman began his order by stating: “’Timing,’ they say, ‘is everything’”, noting that “The ubiquitous ‘they’ may well be correct about that timing thing when it concerns the issue of when a party anticipated litigation under the work product doctrine.”

With regard to the dates proposed by the defendant, Judge Goodman ruled as follows:

  • June 27, 2017, because it was the date that the sole owner of Noah’s Wholesale recorded his statement about the loss and provided a document indicating that the alarm system was not activated on the date of the loss: Judge Goodman stated: “The Undersigned disagrees with Covington’s argument that work product protection over the claim file starts on June 27, 2017, because there was still uncertainty about whether litigation would ensue at this point. By Covington’s own actions, such as sending a reservation of rights letter in August 2017 (asking Noah’s Wholesale for more information/documentation of the loss), it is evident that Covington was still in ‘information gathering mode’ and not certain about litigation.”
  • August 3, 2017, because it was the date when “Covington’s assigned claims administrator sent the insured correspondence . . . indicating it was investigating the claim under a reservation of rights, and specifically requested certain information from the insured”: Judge Goodman stated: “the Undersigned similarly disagrees with beginning the work product protection on the date of the ROR letter because Covington was still investigating Noah’s Wholesale’s claim and had not declined or otherwise reached a final decision on coverage of the claim.”
  • June 6, 2018, because it was the date when “Covington re-opened the subject claim after it received correspondence from Joshua Widlansky, Esq., advising Covington that the insured had retained the law firm of Padula Bennardo Levine in relation to the subject claim.”: Judge Goodman stated: “After reviewing the claim file in camera, the Undersigned agrees with Covington that June 6, 2018, when Noah’s Wholesale informed Covington that it retained counsel in relation to the subject claim, is the date when the work product protection should begin over the claim file. The in camera inspection shows that Covington responded to the letter as if litigation were imminent, and created claim file documents from that point forward with the ‘prospect of litigation [as] the primary motiving purpose.’…Discussing the need for outside coverage counsel (after learning that the insured retained counsel) is a tangible illustration of a view that litigation was anticipated.”

So, what do you think?  Is the notification that the party has retained an attorney a good milestone to use for reasonable anticipation of litigation?  Or is there a better one prior to the case actually being filed?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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