Speaking of waiving the attorney client privilege by placing communications at issue . . . .

This issue came up last week and again this week.  I’m going to call it a trend.

Here’s a new interloc. petition on discovery/attorney client privilege issues filed on May 13, 2014 in Royal Indemnity Co. v. Great Amer. E & S Ins. Co.

Excess insurer Great American sued primary insurer Royal Indemnity and its counsel, Quintairos, Prieto, Wood & Boyer alleging that their negligence in handling four underlying cases against two nursing homes was the sole cause of Great American’s settling those cases. Royal and Quintairos sought discovery from Great American, the nursing homes and their separate counsel of information regarding the settlement of the nursing home suits. The trial court ruled that the discovery was protected by attorney-client and work-product. Royal and Quintairos seek interlocutory review arguing that Great American voluntarily injected the reasons for settling the underlying cases into the suit thereby making this information discoverable notwithstanding the privilege. The case is in the Warren County Circuit Court.  The Miss.S.Ct. docket number is 2014-M-626.   

More details about this case can be gleaned from this earlier opinion.

And here’s the response filed on June 10, 2014. Baker Donelson et al. phrsae the issue thusly:

The petitioners cite no authority for the proposition that an insurer’s assertion of a malpractice
claim against defense counsel waives the insured’s attorney-client privilege for communications
with its independently retained outside counsel. The lack of authority is not surprising. Indeed,
if the petitioners’ view were correct, anyone who buys liability insurance would lose the right to
protect his privileged communications

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