Court Allows Third Party Discovery Of Broker Materials Claimed To Be Privileged


Defendant liability insurers sought discovery from Third Party Aon relating to a dispute between defendants and plaintiff regarding an umbrella coverage program. Aon provided some, but not all responsive documents, citing instructions from Plaintiff Black & Veatch, which asserted privilege objections on behalf of Aon, and provided a privilege log for 41 withheld documents. The defendants moved to compel production of all but two of those documents. In response, Black & Veatch claimed that Aon was acting as a representative of Black & Veatch, that they were made in anticipation of litigation, were subject to attorney-client privilege, and that the documents were thus protected from disclosure. The Court held that the privilege log did not adequately disclose the bases for the assertions of privilege or work product, that it was not evident that Aon acted as Black & Veatch’s agent, that the documents listed were prepared in anticipation of litigation, or that they were confidential communications reflecting a primary purpose of providing legal advice. The Court also held that the plaintiff failed to demonstrate a basis for in camera review, and thus ordered it to produce the documents. Black & Veatch v. Aspen Insurance (UK) Ltd., No. 12-2350-SAC (USDC D. Kan. Feb. 28, 2014).

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