Routine Business Not Protected Work Product
Barry Zalma
Oct 31, 2023
Read the full article at https://lnkd.in/gAHWECZq and see the full video at https://lnkd.in/gKbEnqkg and at https://lnkd.in/gXuT8NUJ and at https://zalma.com/blog plus more than 4650 posts.
In Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., et al., No. 2:17-cv-01515-KJM-AC, United States District Court, E.D. California (October 25, 2023) an insurance coverage dispute wastes the time of the court and the litigators are admonished by the court.
FACTUAL BACKGROUND
In a long-running insurance coverage dispute that was prolonged for several years by defendant Global Aerospace Inc.’s refusals to produce evidence in response to requests from plaintiff Aerojet Rocketdyne, Inc. The root of the disagreement was Global’s assertion of attorney-client privilege and work-product protections.
The Magistrate Judge determined the disputed evidence was not protected by the attorney-client privilege or work product doctrine, and the court denied Global’s repeated requests to revisit that decision. In short, although attorneys were involved in the disputed investigation, communications with them were not privileged, and their work product was not protected; the investigation was part of the company’s routine business. It was not conducted in anticipation of litigation.
Several defendants, including Global, have now moved for summary judgment. Briefing is ongoing. The exhibits are excerpts of transcripts from two depositions marked “confidential” under the terms of a discovery protective order. The witnesses were Katherine Posner and Wendy Grossman, two attorneys at the center of the dispute about privilege and work product. The defendants argued the transcripts are “sensitive” and must be sealed because they “would ordinarily be protected by the attorney-client privilege and work product doctrine.”
The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. Although that right is not absolute, a strong presumption in favor of access is the starting point. This presumption is based on the need for federal courts, although independent-indeed, particularly because they are independent-to have a measure of accountability and for the public to have confidence in the administration of justice.
When documents are filed with motions more than tangentially related to the merits of a case, such as alongside a motion for summary judgment, a party who asks to keep them secret must meet the high threshold of showing that compelling reasons that support that request. This standard applies even if the documents have previously been filed under seal or are covered by a generalized protective order, including a discovery-phase only protective order.
To decide whether the party requesting sealing has carried its burden, the court balances the requesting party’s reasons for secrecy with the public’s interests in disclosure. If a court decides to grant a request to seal, it must explain its reasons and may not rely on hypothesis or conjecture.
The District Court concluded that the defendants have not justified their request to seal the deposition transcript excerpts in question. They cannot rely on the confidentiality designation now. Once confidential discovery documents are made part of a dispositive motion, such as a motion for summary judgment, they lose their status of being raw fruits of discovery. They no longer enjoy protected status without some overriding interest in favor of keeping the discovery documents under seal.
DOCUMENTS UNDER SEAL
The District Court concluded that the defendants have no overriding interest in secrecy. They do not claim the testimony was privileged. They do not contend it discloses protected work product. They argue only that the testimony would “ordinarily” be privileged or protected, except that the court had decided they waived the attorney-client privilege with their outside counsel.
The argument suffers from two primary faults:
1. The court did not find the defendants waived the protections of any privilege or protection. The Magistrate Judge found the documents were not privileged and not protected, and this court upheld that decision. There was nothing to waive.
2. The defendants’ argument proves too much. If an unsuccessful privilege claim could support a motion to seal, then any defendant could keep any document from the public view simply by asserting a meritless privilege claim, waiting for that claim to be rejected, and asking to seal the document because it would “ordinarily” have been privileged. Any evidence could be kept from the public arbitrarily.
The deposition testimony may not be kept secret solely because it is specific to the particular claim at issue in the litigation. The argument undermines the motion. If the court were to grant summary judgment, and if the testimony were sealed, then the public could not read and understand the evidence behind the court’s decision why there was no genuine dispute as to any material fact.
Therefore, the motion to file under seal was denied. In addition, the court ordered that within seven days, defendants must either (1) file a notice withdrawing their reliance on Exhibits AAAA and BBBB in connection with their pending motion for summary judgment, or (2) file copies of Exhibits AAAA and BBBB on the public docket.
THE WARNING
The court and the parties have already devoted too much time, too much money, and too much effort to arguments about privilege and work product protections. As before, the court warns defendants that “dilatory or evasive tactics may result in an order to show cause why sanctions should not issue.”
ZALMA OPINION
There is nothing that annoys a trial judge more than repeated motions asserting privileges that do not exist yet wish to use the documents to support a dispositive motion. Insurance disputes should be relatively straightforward based upon clear and unambiguous wording of an insurance policy as applied to the facts supporting the dispute. Years of disputes over discovery of facts that the court repeatedly ruled were not privileged is contumacious and if continued the warning from the court should result in the sanctions predicted.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808
Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01
Follow me on LinkedIn: http://www.linkedin.com/comm/mynetwork/discovery-see-all...
Daily articles are published at https://zalma.substack.com.
Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Go to Newsbreak.com https://lnkd.in/g8azKc34;
Subscribe to substack at https://lnkd.in/gcZKhG6g; Go to Newsbreak.com https://lnkd.in/g8azKc34
Go to Newsbreak.com https://lnkd.in/g8azKc34
Go to the Insurance Claims Library – https://lnkd.in/gwEYkxD
Interpleader Protects All Claimants Against Life Policy and the Insurer
Who’s on First to Get Life Insurance Proceeds
Post 5184
See the full video at https://lnkd.in/gyxQfnUz and at https://lnkd.in/gAd3wqWP, and at https://zalma.com/blog plus more than 5150 posts.
Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://lnkd.in/gRthzSnT; Go to Barry Zalma on YouTube- https://lnkd.in/g2hGv88; Go to the Insurance Claims Library – https://lnkd.in/gwEYk.
Interpleader Protects All Claimants Against Life Policy and the Insurer
In Metropolitan Life Insurance Company v. Selena Sanchez, et al, No. 2:24-cv-03278-TLN-CSK, United States District Court, E.D. California (September 3, 2025) the USDC applied interpleader law.
Case Overview
This case involves an interpleader action brought by the Metropolitan Life Insurance Company (Plaintiff-in-Interpleader) against Selena Sanchez and other defendants (Defendants-in-Interpleader).
Key Points
Plaintiff-in-Interpleader’s Application:
The Plaintiff-in-Interpleader...
A Claim by Any Other Name is not a Claim
Post 5182
It is Imperative that Insured Report Potential Claim to Insurers
Read the full article at https://lnkd.in/gfbwAsxw, See the full video at https://lnkd.in/gea_hgB3 and at https://lnkd.in/ghZ7gjxy, and at https://zalma.com/blog plus more than 5150 posts.
In Jeffrey B. Scott v. Certain Underwriters At Lloyd’s, London, Subscribing To Policy No. B0901li1837279, RLI Insurance Company, Certain Underwriters At Lloyds, London And The Insurance Company, Subscribing To Policy No. B0180fn2102430, No. 24-12441, United States Court of Appeals, Eleventh Circuit (August 25, 2025) the court explained the need for a claim to obtain coverage.
Case Background:
This appeal arises from a coverage dispute under a Directors & Officers (D&O) insurance policy. Jeffrey B. Scott, the plaintiff-appellant, was terminated from his role as CEO, President, and Secretary of Gemini Financial Holdings, LLC in October 2019. Following his termination, Scott threatened legal action against Gemini, and ...
A Claim by Any Other Name is not a Claim
Post 5182
It is Imperative that Insured Report Potential Claim to Insurers
Read the full article at https://lnkd.in/gfbwAsxw, See the full video at https://lnkd.in/gea_hgB3 and at https://lnkd.in/ghZ7gjxy, and at https://zalma.com/blog plus more than 5150 posts.
In Jeffrey B. Scott v. Certain Underwriters At Lloyd’s, London, Subscribing To Policy No. B0901li1837279, RLI Insurance Company, Certain Underwriters At Lloyds, London And The Insurance Company, Subscribing To Policy No. B0180fn2102430, No. 24-12441, United States Court of Appeals, Eleventh Circuit (August 25, 2025) the court explained the need for a claim to obtain coverage.
Case Background:
This appeal arises from a coverage dispute under a Directors & Officers (D&O) insurance policy. Jeffrey B. Scott, the plaintiff-appellant, was terminated from his role as CEO, President, and Secretary of Gemini Financial Holdings, LLC in October 2019. Following his termination, Scott threatened legal action against Gemini, and ...
Barry Zalma: Insurance Claims Expert Witness
Posted on September 3, 2025 by Barry Zalma
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive and became a consultant and expert witness for lawyers representing insurers and lawyers ...
APPRAISAL AWARD SETS AMOUNT OF DAMAGES RECOVERED FROM INSURER
Post 5180
See the full video at https://rumble.com/v6yd2z0-evidence-required-to-prove-breach-of-contract.html and at https://youtu.be/2ywEjs3hZsw, and at https://zalma.com/blog plus more than 5150 posts.
It’s a Waste of Time to Sue Your Insurer if You Don’t Have Evidence
Evidence Required to Prove Breach of Contract
Read the full article at https://www.linkedin.com/pulse/evidence-required-prove-breach-contract-barry-zalma-esq-cfe-rfelc, see the full video at https://rumble.com/v6yd2z0-evidence-required-to-prove-breach-of-contract.html and at https://youtu.be/2ywEjs3hZsw, and at https://zalma.com/blog plus more than 5150 posts.
It’s a Waste of Time to Sue Your Insurer if You Don’t Have Evidence
In Debbie Beaty and Jonathan Hayes v. Homeowners Of America Insurance Company, No. 01-23-00844-CV, Court of Appeals of Texas, First District (August 26, 2025) Debbie Beaty and Jonathan Hayes filed a claim under their homeowner’s insurance policy with Homeowners of ...