United States District Court, N.D. California
ORDER RE MOTION FOR RECONSIDERATION AND
ADMINISTRATIVE MOTION TO SEAL
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
insurance action, a non-party moves for reconsideration of a
discovery dispute order. Defendant moves for joinder in the
motion. For the reasons stated below, reconsideration is
National Union Fire Insurance Company of Pittsburgh,
Pennsylvania, was the primary insurer for Anderson Hay &
Grain, an exporter of hay and straw products. Plaintiff
Houston Casualty Company had the excess (Compl. ¶¶
4, 8, 9).
Union issued a primary policy with a general aggregate limit
of $10 million, an each-occurrence limit of one million
dollars, and an each-location aggregate sub-limit of two
million dollars to Anderson Hay, effective May 2014 to May
2015. Houston Casualty issued a form excess policy to
Anderson Hay, effective May 2014 to May 2015 (**).
2014, Bartolo Flores collapsed while delivering alfalfa to
the premises of Anderson Hay. He filed suit in Los Angeles
Superior Court. National Union agreed to defend and indemnify
Anderson Hay in the action. Anderson Hay retained Acker &
Whipple as counsel for that underlying action. Houston
Casualty requested it be included on all correspondence
related to the underlying action. In August 2018, the jury
returned a verdict of $3.5 million against Anderson Hay in
the underlying action (id. ¶¶ 8-11, 14,
Houston Casualty asserts National Union unreasonably refused
to settle the underlying action within its policy limits and
accordingly alleges the following claims for relief: (1)
equitable subrogation, (2) unjust enrichment, and (3)
declaratory relief (id. ¶¶ 24-49).
agree that advice given by the law firm to National Union is
discoverable, the privilege between them having been waived.
The instant dispute concerns a July 31 email that was
initially produced but later clawed back on the theory that
it had never been sent to National Union. In October 2019,
Houston Casualty filed a discovery motion regarding this
email, written by attorney Stephen Acker of Acker &
Whipple, providing an evaluation of the underlying action.
Non-party Acker & Whipple had voluntarily produced the
email to all parties during discovery. Later, however, Acker
& Whipple stated that it had unintentionally produced the
email, that it was protected by the work-product rule on the
ground that it expressed Mr. Acker's opinions and mental
impressions, and that the privilege had not been waived. The
parties do not dispute that a similar discoverable email
dated August 2, 2017, providing an evaluation of the action
was sent to National Union.
Union did not appear at the hearing for the discovery motion.
An order issued in favor of Houston Casualty. The order was
stayed for seven calendar days, allowing Acker & Whipple
or any other party to seek emergency appellate relief. On
October 30, Acker & Whipple moved to stay enforcement of
the October 23 order pending its motion for reconsideration,
which it filed on October 31. National Union moved for
joinder. The Court stayed its October 23 order pending
resolution of the motion for reconsideration, but stated the
email in question could be used in the deposition of any
Acker & Whipple attorney and in the deposition of
plaintiff's expert. This order follows full briefing and
oral argument (Dkt. Nos. 40, 43-45, 49, 52-54).
for reconsideration are governed by Civil Local Rule 7-9,
which requires the movant to show one of the following:
(1) That at the time of the motion for leave, a material
difference in fact or law exists from that which was
presented to the Court before entry of the interlocutory
order for which reconsideration is sought. The party also
must show that in the exercise of reasonable diligence the
party applying for ...