The Plaintiff-Trustee requested that the Court issue an order (1) requiring the Defendant insurance company to turn over a Microsoft Word Document compiled by the Defendant’s employee, (2) allowing the Plaintiff to reopen the deposition of said employee, and (3) awarding reasonable costs and attorney’s fees to Plaintiff pursuant to Federal Bankruptcy Rule 7037(a)(5).
     The Court first found the Defendant did not waive any privilege or work product claims simply through the presence of the Word Document at the employee’s deposition. Looking to Federal Rule of Evidence 612, the Court found the Plaintiff did not meet his burden of establishing that the employee used the Word Document to refresh his memory at, or in advance of, the deposition.
     Second, the Court found that the Defendant did not waive its claims of privilege and work product by its delayed inclusion of the Word Document on a supplemental privilege log. The Court stated that there was no indication of an unjustified delay, inexcusable conduct, or bad faith to warrant a waiver of any privilege or work product claims.
     Third, the Court rejected the Plaintiff’s assertion that the entirety of the Word Document contained discoverable communications within the tripartite relationship. The Court found that attorney-client privilege protected the Defendant’s communications with its in-house counsel, as well as outside counsel retained solely to represent the Defendant, but that the privilege does not extend to circumstances where the Defendant’s counsel was joined in conversations by the state-court attorneys retained to defend the insured. Accordingly, the Court ordered turnover of the portion of the Word Document that was unprotected by privilege or work product claims and allowed the Plaintiff to reopen the employee’s deposition.
     Lastly, the Court found the circumstances prompting the Plaintiff to file the motion supported the awarding of reasonable expenses under Rule 7037(a)(5).