Check Those Privilege Logs: Attorney Participation Does Not Automatically Cloak Documents In Privilege

As we have explored in prior posts—privilege can be a tricky thing to navigate in the insured-insurer context. While protecting privileged information is an obvious priority for all parties at all times, privilege gets especially gnarly when all things do—in litigation. In the throes of discovery, plaintiffs and defendants want access to all of their adversary's information that is relevant and material to the prosecution or defense of the case, while protecting their own privileged information from disclosure. A recent case from New York Supreme Court reminds us that attorney participation in the creation of documents does not automatically cloak them in privilege.

Plaintiff insurers in New Hampshire Insurance Co. v. MF Global Finance USA Inc. (Index No. 601621/2009) are seeking a judgment declaring that MF Global is precluded from recovering under financial institution bonds issued by plaintiffs. In the defense of the case, MF Global sought the production of