1:20-cv-698

United States District Court, Southern District of Ohio

Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co.

Decided Apr 22, 2022

1:20-cv-698

04-22-2022

LUXOTTICA OF AMERICA INC., Plaintiff, v. ALLIANZ GLOBAL RISKS U.S. INSURANCE COMPANY,
et al., Defendants.

Timothy S. Black United States District Judge

ORDER RESOLVING DISCOVERY MOTIONS (DOCS. 81 AND 82)

Timothy S. Black United States District Judge

This civil action is before the Court on Plaintiff's motion to compel documents from Defendant (Doc. 81) and
the parties' responsive memoranda (Docs. 87 and 92). Also before the Court's is Defendant's omnibus discovery
motion to compel documents from Plaintiff and for other discovery relief (Doc. 82) and the parties' responsive
memoranda. (Docs. 90 and 95). The Court has also reviewed several of the parties' documents submitted for in
camera review.

I. BACKGROUND

Luxottica of America, Inc. (“Luxottica”), an eyeware retailer, is insured by Allianz Global Risks U.S. Insurance
Company (“Allianz”). (Doc. 1 at ¶¶8, 12-15). Luxottica is actively defending class-action lawsuits (“underlying
litigation”) related to the marketing of its “AccuFit” service. (Id. at ¶26).1 Allianz initially paid for Luxottica's
1 defense in the *1 underlying litigation. (Id. at ¶¶34, 35). Three years later, Allianz reversed course, arguing that
the claims asserted against Luxottica in the underlying litigation were not covered by the policy.2 (Id. at ¶37).
Allianz stopped defending Luxottica in the underlying litigation and asked Luxottica to reimburse it for
expenses already paid. (Id. at ¶42).
1 The cases were consolidated under the caption Allegra, et al. v. Luxottica Retail North America, 17-cv-5216 PKC-RLM

(E.D.N.Y 2017).

2 There are several policies. (See Doc. 83). The inter-relationship between those policies is not relevant here, so the Court

will regard them as a unified “policy” for ease.

Luxottica filed the present case to, inter alia, compel Allianz to pay for its defense in the underlying litigation.
(See Amended Complaint, Doc. 83). Luxottica also asserts a breach of contract, a duty to defend, and a bad-
faith claim against Allianz. (Id.). Allianz has counterclaimed for the amounts paid. (Doc. 89 at PageID# 3561-
62). Diversity of the parties is the basis for the Court's jurisdiction. (Id. at PageID# 3508).

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

The parties charted a litigation course whereby the Court would first decide the issue of the duty to defend.
(Docs. 47 and 50). On full briefing, the Court found that Allianz had a duty to defend Luxottica in the
underlying litigation. (Doc. 55). Allianz, perhaps with some wavering, has resumed paying for Luxottica's
defense costs in the underlying litigation. See e.g., Notation Order of January 28, 2022.

Now the parties have run into several discovery disputes. The Court has conducted more than one informal
discovery conference to no avail. The parties have filed briefing and submitted documents for in camera
2 review. The Court duly resolves the disputes properly before it *2

II. STANDARD OF REVIEW

Rule 37 of the Federal Rules of Civil Procedure authorizes a motion to compel discovery when a party fails to
produce documents as requested under Rule 34. Fed. R. Civ. Pro. 37(a)(3)(B)(iv). “The proponent of a motion
to compel discovery bears the initial burden of proving that the information sought is relevant.” Martin v. Select
Portfolio Serving Holding Corp., No. 1:05-cv-273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio Sept. 25,
2006) (citing Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D.D.C.1999)).

Rule 26(b) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). Relevance for discovery purposes is extremely broad.
Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). “The scope of examination permitted under
Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably
calculated to lead to the discovery of admissible evidence.” Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-
01 (6th Cir. 1970). However, “district courts have discretion to limit the scope of discovery where the
information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (citing Fed.R.Civ.P. 26(b)(2)).

The party moving to compel discovery must certify that he “has in good faith conferred or attempted to confer
3 with the person or party failing to make disclosure or *3 discovery in an effort to obtain it without court
action.” Fed.R.Civ.P. 37(a)(1); see also S.D. Ohio Civ. R. 37.1.

The burden of establishing a claim of privilege rests with the party asserting it. United States v. Roxworthy, 457
F.3d 590, 593 (6th Cir. 2006); Glazer v. Chase Home Fin. LLC, No. 1:09-CV-1262, 2015 WL 12733393, at *2
(N.D. Ohio June 15, 2015). If a claim of privilege is challenged, the party asserting it must establish each
element by competent evidence. See Cooey v. Strickland, 269 F.R.D. 643, 649 (S.D. Ohio 2010); Comtide
Holdings, LLC v. Booth Creek Mgmt. Corp., No. 2:07-CV-1190, 2010 WL 4117552, at *5 (S.D. Ohio Oct. 19,
2010) (stating that a party must establish the factual predicate for a claim of privilege by “competent
evidence”).

Communications are not discoverable if protected by attorney-client privilege.

The attorney-client privilege applies “[w]here legal advice of any kind is sought.” Reed v. Baxter, 134 F.3d
351, 355 (6th Cir. 1998). “Fundamentally, legal advice involves the interpretation and application of legal
principles to guide future conduct or to assess past conduct.” In re Cnty. of Erie, 473 F.3d 413, 419 (2d Cir.
2007). When a communication involves both legal and non-legal matters, courts “consider whether the
predominant purpose of the communication is to render or solicit legal advice.” Id. at 420. This predominant
purpose “should be assessed dynamically and in light of the advice being sought or rendered, as well as the
relationship between advice that can be rendered only by consulting the legal authorities and advice that can be
given by a non-lawyer.” Id. at 420-21.

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

4 The work-product doctrine is “broader” than attorney-client privilege. *4 In re Columbia/HCA Healthcare

Corp. Billing Pracs. Litig., 293 F.3d 289, 294 (6th Cir. 2002). “[T]he work product doctrine protects any
document prepared in anticipation of litigation by or for the attorney.” In re Antitrust Grand Jury, 805 F.2d 155,
163 (6th Cir. 1986) (citing In re Special September 1978 Grand Jury, 640 F.2d at 62). However, “[a]pplication
of Rule 26(b)(3) is not limited solely to attorneys. Rather, the Rule explicitly states that it applies to documents
and tangible things prepared by or for the party and the party's representative.” Eversole v. Butler Cty. Sheriff's
Off., No. C-1-99-789, 2001 WL 1842461, at *2 (S.D. Ohio Aug. 7, 2001).

III. ANALYSIS

Luxottica seeks information related to claim handling materials. (Doc. 81).

Allianz asserts these are protected by the work-product doctrine, attorney client privilege, and argues that some
of the requests seek irrelevant documents. (Doc. 87). Similarly, Allianz seeks documents related to Luxottica's
defense in the underlying litigation and a host of other relief to which Luxottica has put forth a variety of
defenses.

A. Indemnity reserve data in redacted emails

Allianz has redacted indemnity reserve information from 38 emails it produced to Luxottica. (Doc. 87 at 6).
Luxottica has moved to compel full production of these emails. (Doc. 81).

“[I]ndemnity reserves provide a measure of the insurer's total expected exposure on a given claim based upon
information known at that time and reasonable investigation.” 1550 Brickell Assocs. v. QBE Ins. Corp., No. 07-
22283-CIV, 2011 WL 9506, at *1 (S.D. Fla. Jan. 3, 2011). Essentially, “indemnity reserves” are a sub-category
5 *5 of what the insurance industry regards as “claim reserves.” While it is not perfectly clear or consistent to the
Court's vantage, “claim reserves” can refer to almost anything in an insured's claim-handling file.” See Bondex
Int'l, Inc. v. Hartford Acc. & Indem. Co., No. 1:03CV1322, 2006 WL 355289, at *2 (N.D. Ohio Feb. 15, 2006).
On the other hand, an indemnity reserve reflects the insurer's specific exposure to the insured given the claim.
1550 Brickell Assocs 2011 WL 9506, at *1. In either case, as one court has said, “a reserve essentially reflects
an assessment of the value of the claim taking into consideration the likelihood of an adverse judgment.”
Bondex Int'l, Inc., No. 1:03CV1322, 2006 WL 355289, at *2 (N.D. Ohio Feb. 15, 2006). For that reason,
reserves are generally considered privileged, either as work-product or attorney-client communication.

Ohio has established an exception to that general rule for cases alleging bad-faith denials by an insurer. That
exception was announced in a case called Boone v. Vanliner Insurance Company. 2001-Ohio-27, 91 Ohio St.3d
209, 744 N.E.2d 154. The court in Boone stated:

we hold that in an action alleging bad faith denial of insurance coverage, the insured is entitled to
discover claims file materials containing attorney-client communications related to the issue of
coverage that were created prior to the denial of coverage. At that stage of the claims handling, the
claims file materials will not contain work product, i.e., things prepared in anticipation of litigation,
because at that point it has not yet been determined whether coverage exists.

Boone v. Vanliner Ins. Co., 2001-Ohio-27, 91 Ohio St.3d 209, 213-14, 744 N.E.2d 154, 158.

6 Courts have diverged on how to apply the holding of Boone. An Ohio court of *6 appeals decision, Garg v.
State Auto, would make the inquiry simple. 2003-Ohio-5960, ¶ 11, 155 Ohio App.3d 258, 261, 800 N.E.2d 757,
759. If the sought information predates the denial of coverage and “may cast light on whether the handling or
denial of the claim was made in bad faith, ” it is unworthy of protection under either attorney-client privilege or

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

the work product doctrine. Id. Meanwhile, a Southern District of Ohio case, applying Boone, stretches the
exception such that it applies to material outside of the claims-handler's file. Scotts Co. LLC v. Liberty Mut. Ins.
Co., No. CIV A 206-CV-899, 2007 WL 1500899, at *5 (S.D. Ohio May 18, 2007). Other cases have
distinguished Boone almost to the vanishing point. The court in Scott v. Allstate held reserves were not
“relevant” because, under Ohio law, intent is not a necessary element of a bad faith insurance denial claim.
Scott v. Allstate Indem. Co., No. 4:05 CV 0076, 2005 WL 8166082, at *3 (N.D. Ohio Dec. 22, 2005).

A more nuanced approach has emerged in federal diversity cases. Under this approach, the Boone exception
applies to attorney-client communications but not the work-product doctrine. See Zigler v. Allstate Ins. Co., No.
1:06CV2112, 2007 WL 1087607, at *2 (N.D. Ohio Apr. 9, 2007); Hoskins v. Liberty Mut. Grp., Inc., No. 2:19-
CV-5441, 2020 WL 7201111, at *2 (S.D. Ohio Dec. 4, 2020). The reason for this distinction is that the Boone
exception is a matter of state common law. See Zigler, 2007 WL 1087607, at *2. As such, the Boone exception
does not disturb work-product protections, which originate in Federal Rule of Civil Procedure 26(b)(3). Id.

The Court finds this last approach is the way to go-not least because the Sixth Circuit has explicitly stated that
7 “[i]n a diversity case, the court applies federal law to *7 resolve work product claims and state law to resolve
attorney-client claims.” In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006). Thus, the Court
will not apply Boone to work-product claims.

Here, based on its in camera review, the Court finds there is sufficient evidence that indemnity reserves figures
redacted from emails were indeed prepared in anticipation of litigation and deserve protection as work-product.
The evidence of this is contextual but not difficult to understand. Indemnity reserves reflect the insurer's
exposure to the insured. All redacted emails take place after Allianz, internally at least, had decided or was
seriously considering that it would decline coverage for at least some portions of the claims under the policy.
Of course, it is a well-known and undisputed fact of this case that the Allianz made a decision to deny coverage
after it had recognized coverage and started to pay defense costs. A possible reversal like this on a policy of
this size would almost surely raise the prospect of litigation with the insured. The indemnity reserves,
meanwhile, always reflect “exposure” to the insured. 1550 Brickell Assocs 2011 WL 9506, at *1. Putting all
this altogether, the Court concludes the redacted figures in the emails are indeed work-product.

The Court finds Luxottica's arguments for disclosure unpersuasive. Luxottica points out that much of the
correspondence is between non-lawyers. (Doc. 92 at PageID# 3729). But long-established authority dictates
that the question is whether the documents were prepared in anticipation for litigation. Eversole, 2001 WL
1842461, at *2 (S.D. Ohio Aug. 7, 2001). Luxottica's argument is thus unpersuasive.

8 Luxottica also attempts to draw a line through June 18, 2020-the date an Allianz *8 claims specialist first
mentioned the possibility of litigation. Luxottica argues the pre June 18 emails can have no work-product
protection because Allianz did not anticipate litigation until a claims specialist explicitly raised the prospect of
litigation in a June 18 email. (Doc. 92 at 3 n.2). That is an overly simplistic marker of a party's “anticipation of
litigation.” The Court has explained why the facts of this case demonstrate that Allianz would have anticipated
litigation at an earlier time.3
3 To be sure, the Court is equally unimpressed with the approach advocated by Allianz. Allianz wants to time-stamp the

“anticipated litigation” threshold as the date it sent a “rights and reservations” letter to Luxottica-November 27, 2017.
Allianz is correct that “documents may be considered created ‘in anticipation of litigation' after a Reservation of Rights
letter has been issued.” (Doc. 87 at 13 (citing St. Paul Fire & Marine Ins. Co. v. ConAgra Foods, Inc., 2008 WL
222518, at *2 (S.D.Ohio Jan. 25, 2008) (emphasis added by Court))). But “may be” is not must and context will matter.

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

Luxottica is closer, but still falling short in demanding that, in the post-June 18 emails, “Allianz must show that
anticipated litigation was the ‘driving force behind the documents' preparation.” (Doc 79 at PageID# 2428).
The quoted language comes from a Sixth Circuit case that lays out a standard for identifying documents subject
to workproduct protection. In re Pros. Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009). In particular:

Making coverage decisions is part of the ordinary business of insurance and if the “driving force”
behind the preparation of these documents was to assist Professionals Direct in deciding coverage, then
they are not protected by the work-product doctrine. Roxworthy, 457 F.3d at 595. As the magistrate
recognized, whether the documents at issue here were in fact prepared in anticipation of litigation can
only be determined from an examination of the documents themselves and the context in which they
were prepared.

Id.

9 Here, of course, the indemnity reserves did not seem to assist the insurer in *9 deciding coverage. As the Court
has explained, they appear functionally as an outgrowth of an internal decision regarding the scope of the
coverage. For that reason, they seem to reveal work-product that would anticipate litigation. And, as also
explained, the Court has found “the context in which” the indemnity reserves “were prepared” a particularly
important consideration. Id. Given this context, and the general purpose of indemnity reserves, litigation would
seem to be the driving force behind the setting of the redacted reserves figures at-issue.

In a footnote, Allianz argues partial waiver. (Doc. 79 at PageID# 2428 n.5). The Court cannot fully grasp the
argument as the Court is unsure which parts of which documents were disclosed. In any case, the Court agrees
with Allianz that, to overcome a work-product claim, the disclosure must be made to an adversary. See In re
Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d 289, 306 (6th Cir. 2002). There is no
indication of that here.

Accordingly, Allianz has properly redacted its indemnity reserves figures on its 38 redacted emails. To be clear,
by Allianz privilege log numbers, those emails are as follows: 1306, 1322, 1581, 1625, 115, 1262, 337, 1583,
342, 428, 509, 1598, 437, 1601, 759, 760, 761, 762, 764, 765, 1604, 767, 1558, 775, 177, 203, 768, 770, 771,
772, 1372, 1374, 160, 121, 391, 1381, 1269, and 134.

The Court has based this determination on a review of the documents and an application of the work-product
standard. Fed.R.Civ.P. 26(b)(3). While Allianz has appropriately tailored its redactions, the Court would reject
more categorical approaches advocated by Allianz. The Court, in other words, does not accept the notion that
10 claim or *10 indemnity reserves are per se “irrelevant” to a bad-faith claim, as will be discussed more in depth
below.

Put another way, the Court has found no reason to apply special rules or presumptions to reserves data when
work-product is claimed over them. As with other documents, the proponent must demonstrate they were
prepared in anticipation of litigation. Allianz has done so with regard to its redacted emails detailing indemnity
reserves.

B. Allianz's emails with counsel

Allianz also claims privilege over redacted or totally withheld documents with its counsel-either because they
are dated post-denial of coverage and thus outside of the Boone exception or because they are work-product.
(Doc. 87 at 11-13). The Court has reviewed these documents in camera and finds they do indeed deserve
protection as work-product. Redactions at Allianz privilege log numbers 1597, 520, 10, 230 consist of the

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

impressions and opinions of outside counsel or messages sent to outside counsel so they may express an
opinion. Hickman v. Taylor, 329 U.S. 495, 510 (1947) (“Not even the most liberal of discovery theories can
justify unwarranted inquiries into the files and the mental impressions of an attorney.”). Privilege log number
153 is a document provided to outside counsel at his request and thus warrants work-product protection. See
Bard v. Brown Cnty., 2017 WL 3129802, at *3 (S.D. Ohio July 21, 2017). The in camera review of this
document clearly demonstrates that it is work product.

Luxottica argues that these documents are not work-product and that the Boone exception applies. (Doc. 92 at
11 10-11). Based on the Court's in camera review, the Court *11 finds they are work-product. Thus, the Boone
exception does not apply. Accordingly, the following documents may remain either fully withheld or redacted
as the case may be: 1597, 520, 10, 230, 153.

C. Relevance objections to other Luxottica requested documents

Allianz completely withholds a series of 13 documents that contain “only reserve data....” (Doc. 87 at 17). For
this reason, Allianz argues, they are irrelevant to a bad faith claim and not discoverable for that reason. (Id.).4
This argument reprises a familiar split both among courts and the parties in this case.
4 Allianz's introduction to this point briefly raises the possibility of a work-product claim. (Doc. 87 at 20) (“Case law

thus confirms that the Boone exception does not render reserves discoverable in a bad faith case. Reserves data is work
product, and work product is not subject to the Boone exception. The Boone exception only applies to documents which
may “cast light on bad faith” by a defendant.). But there is no discussion of these documents as work product. Allianz's
arguments hinge completely on irrelevance.

In particular, the courts that reject a broad reading of Boone also tend to also hold that reserves information is
irrelevant to a bad-faith claim. For example, the Court in Bondex states:

[T]his court agrees that evidence of the amount of reserves is not relevant because it is not necessarily
based on a full knowledge of the facts and the law of the case. Instead, the number most often reflects a
business decision, and a business decision, while perhaps of interest to plaintiffs, is not relevant to the
litigation.

Bondex, No. 1:03CV1322, 2006 WL 355289, at *3 (N.D. Ohio Feb. 15, 2006).

On the other hand, other courts have held that claims reserves information is relevant if it “may cast light” on a
bad-faith denial. In re Pros. Direct Ins. Co., 578 F.3d 432, 442 (6th Cir. 2009); Garg v. State Auto. Mut. Ins.
12 Co., 155 Ohio App.3d 258, *12 800 N.E.2d 757 (2003).

With regards to relevance, the Court finds the “may cast light” approach is the better guide. To start, the
approach better accords with the broad standard for relevance within discovery.5 Moreover, the “may case
light” standard has support from the Sixth Circuit. See In re Pros. Direct Ins. Co., 578 F.3d at 442 (6th Cir.
2009). Finally, the view that reserves are never relevant to a bad-faith claim is so blunt as to be unpersuasive.
The Court acknowledges that, in any given case, reserves figures may simply be set in a regular course of
business, almost as an after-thought, and provide no real insight into whether the insurer lacked a reasonable
justification to deny a claim-the crucial question on a bad-faith denial. But it is not difficult to imagine a
scenario where a reserve figure does have a bearing on a bad-faith denial-a curiously revised reserve amount,
for example-or could lead to evidence of the same. For these reasons, the Court will determine relevance with
regards to the “may cast light” standard. It now turns to its in camera review.

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

5 “Under the Federal Rules, a party may discover any nonprivileged matter that is relevant to any party's claim or
defense. Fed.R.Civ.P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Gardner v. Norfolk S. R. Co., 307 F.R.D. 467,
469 (N.D. Ohio 2015) (cleaned up). It seems reasonable that reserves figures could, depending on the context, show
why.

Privilege log numbers 1182, 1389, 1636, 1458 are auto-generated messages in response to actions taken
13 regarding reserves.6 The Court questions whether all of these *13 actually contain “reserves data”-because only
one of them says anything about the actual amount set on reserve-but it has no doubt that they are relevant
because they “may cast light” on bad-faith decision-making or lead to evidence regarding the same. The Court
will order them produced. The Court also finds the messages contained in 522, 1626, 1627 could lead to
discoverable evidence of bad-faith and therefore will order those documents produced as well.
6 This document is misidentified either in Allianz's opposition (Doc. 87 at 20, suggesting its privilege log number 1656)

or in the privilege log (Doc. 81-2). Above, the Court has assumed the privilege log is accurate. To avoid doubt, the
Court clarifies that it is talking about the email described on page 1, row 1 of the privilege log. (Id.).

Allianz privilege log numbers 520, 1632 and 1370 are clearly relevant, but also include indemnity figures the
likes of which this Court has already found is protectable work product. Accordingly, Allianz privilege log
numbers 520, 1632 and 1370 shall be produced, but Allianz may redact indemnity figures as work product.

The Court can determine no basis for relevance of Allianz privilege log numbers 193, 1593 or 1594. Those may
remain withheld.

D. Luxottica's communications with Blank Rome and the question of shared privilege

A law firm identified as Blank Rome defends Luxottica in the underlying litigation. (Doc. 82 at PageID# 2562).
Luxottica claims to have shared information with Allianz regarding the underlying litigation. (Doc. 8 at
PageID# 3678). But Luxottica has also withheld communications with Blank Rome, claiming attorney-client
privilege or the work-product doctrine. (Id.). In support of disclosure, Allianz argues that Luxottica and Allianz
enjoy a “shared privilege” or a “common interest” in the underlying litigation. (Doc. 82 at PageID# 2565).

14 Under the “common interest doctrine, ” “communications between an insured and *14 its attorney connected
with the defense of an underlying litigation are normally not privileged vis-a-vis the insured's carrier in a
subsequent action.” U.S. Fire Ins. Co. v. City of Warren, No. 2:10-CV-13128, 2012 WL 2190747, at *6 (E.D.
Mich. June 14, 2012). Luxottica argues, in essence, there is no common interest and therefore no shared
privilege with regards to coverage. (Doc. 90 at PageID# 3687).

The application of the “shared privilege” doctrine to the facts here is far from straightforward. To start, much
more frequently the doctrine is discussed in terms of waiver: two parties who with a common legal interest who
share information with each other cannot be said to have waived a privilege as to third parties. See, e.g., Kerner
v. Terminix, No. 2:04-cv-0735, 2008 WL 321267 (S.D. Ohio Jan. 31, 2008). A shared privilege between Allianz
and Luxottica as against third parties, though, has little to do with the question of whether Allianz can compel
Luxottica to share work-product related to Blank Rome's representation of Luxottica.

To be sure, Allianz does have some support from case law outside the Sixth Circuit. A federal district court in
Florida offers some reasoning in support of Allianz's position. See MapleWood Partners, L.P. v. Indian Harbor
Ins. Co., 295 F.R.D. 550, 613-14 (S.D. Fla. 2013). But the same court approached the situation with a fact-
attentive and careful inquiry. The Court quotes from MapleWood at-length, in part, as an illustration:

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

the Court finds that Plaintiffs and Defendant essentially were co-clients of Miller (and the related
attorneys) as to the defense of the Underlying Matters and, thus, have no privilege to assert against the
disclosure of communications or documents to each other which were shared between any party and
Miller (and the related attorneys) on that subject. This conclusion is based on the Court's finding that

15 *15
Plaintiffs purchased the Policy, a directors and officers liability policy with a cooperation clause, and
subsequently made a claim under the Policy, effectively inviting the insurer into the Plaintiffs'
relationship with its selected counsel, at least temporarily and only as to this subject matter. This is
analogous to the situation in which a general liability insurer, with a duty to defend, has a shared
interest with its insured for the purpose of the defense of the action, as recognized in Florida law.

Alternatively, even if Plaintiffs and Defendant were not effective co-clients, they-at a minimum-had a
common legal interest in the defense of the Underlying Matters such that they are not entitled to avoid
disclosure between themselves as to otherwise privileged materials. The Court's conclusion does not
require Plaintiffs to disclose communications purely relating to the pending coverage dispute before this
Court, but does require disclosure of all documents relating to the RRGC settlement or any of the
Underlying Matters-regardless of the date.

MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 613-14 (S.D. Fla. 2013). The Maplewood
court offers some support for Allianz. Much more substantively, the Maplewood case stands for the idea that
common legal interest theory applies to those issues where the parties are aligned but not to those issues where
the parties are adversaries.

On the other hand, a case from within the boundaries of the Sixth Circuit is uncomplicatedly in support of
Luxottica's position that there can be no shared privilege where coverage is disputed. In particular, the court in
Fire Insurance Company v. City of Warren concluded “because this [common interest] doctrine is based on the
alliance of interests between an insured and its insurer, and because such an alliance of interests does not exist
where coverage is disputed, this doctrine is not applicable, and thus insured attorney communications remain
privileged with respect to the insurer.” No. 2:10-CV-13128, 2012 WL 2190747, at *6 (E.D. Mich. June 14,
16 2012) (emphasis added). *16

Another case from within the Sixth Circuit, Lee v. Medical Protective, addresses differently oriented parties but
applies the same principles. See 858 F.Supp.2d 803, 806 (E.D. Ky. 2012) (“There is no privilege between the
insured and the company as to any matters of common interest .... In matters in which the interest of the
company and the insured diverge, such as a coverage issue, the company is the primary client, so that advice
given to the company on such an issue by the attorney is privileged as to the insured.”) (emphasis added). In
other words, regardless of which party-insured or insurer-is claiming attorney-client privilege or work-product
protection, the information is not discoverable if it relates to a disputed coverage issue and otherwise meets the
relevant standard for privilege.

The Court finds the reasoning of Fire Ins. Co. and Lee most persuasive. Fire Ins. Co. and Lee come from courts
within the Sixth Circuit. Much more importantly, these cases are fined-tuned to the alignment of an insurer and
an insured in a case like this one. In every insurance dispute in a similar posture, the insured and insurer will be
aligned on some issues (a strong defense or quick settlement of the underlying litigation) and unaligned on
others (coverage and the duty to defend). It makes good sense, to the Court's mind, to recognized shared
privilege as to the issues on which they are aligned and to reject it as to those issues where they are unaligned.

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

Using this approach, the Court has undertaken an in camera review of the at-issue communications between
Luxottica and counsel to determine if they relate to an issue on which the parties are aligned or in conflict. The
Court has, in particular, reviewed the following Luxottica privilege log numbers: 24, 26, 27, 28, 30, 31, 36, 39,
17 52, 62, 67, 95, *17 96, 102, 103, and 260.

The Court finds that all the reviewed documents involve attorney-client communication all of which pertains to
either the issue of coverage (which is still disputed) or to the issue of duty to defend. As to the communications
regarding a duty to defend, those communications were made when that issue was in dispute or when litigation
would have been reasonably anticipated. Accordingly, Luxottica does not have a common legal interest with
Allianz on the subjects of these communications. Accordingly, all of Luxottica's communications and/or
documents may remain redacted or withheld as the case maybe. The Court will thus deny Allianz's motion to
compel in this regard.

The Court also notes here that Allianz requests that Luxottica document every single communication with
Blank Rome regarding the underlying litigation on the privilege log. (Doc. 82 at #2582). However, as Luxottica
notes, “nowhere in Fed. R. Civ. Pro. 26(b)(5) is it mandated that a document-by-document privilege log is
required, if a party seeks to withhold documents based on privilege or work product.” (Doc. 90 at PageID#
3697) (citing Durkin v. Shields, 174 F.R.D. 475, 477 (S.D. Cal. 1997)). In this case, the Court finds that it
would be overly burdensome to require Luxottica to document every communication with Blank Rome in the
large and complex litigation. The request is simply overbroad.

For the Court, the more relevant inquiry is what information does Allianz need relative to the underlying
litigation in order to have a fair shot at its defenses. Luxottica has stated exactly what it has produced to Allianz
18 regarding the underlying litigation. *18 (Doc. 90 at PageID# 3687). If Allianz feels short-changed as to certain
information, it should raise those issues specifically. But simply demanding a logged entry for every single
communication in the underlying litigation is excessive relative to the needs of this case.

Finally, as Allianz has requested, the Court has also reviewed Luxottica's privilege log for sufficiency of the log
descriptions. The Court finds the descriptions adequate given the information contained in the respective
documents and will decline to order a revised log.

E. Allianz's request that Luxottica remedy its written discovery responses

Allianz takes issue with Luxottica's responses to written discovery requests. (Doc. 82 at PageID# 2583). There
are several sub-issues here, but the Court finds it does not have sufficient information to resolve the dispute.
These requests will be denied as unripe. Two reasons compel this conclusion.

First, the goal posts have shifted on what the applicable written discovery requests are. Luxottica seemed
unclear whether revised versions of written discovery were proposed by Allianz as the documents of record or
whether they were conditional on concessions from Luxottica. (Doc. 90 at PageID# 3703). In reply, Allianz
clarifies that it has served revised written discovery requests that it intends as the operative requests- but it only
served them, via email, on March 21, 2022. (Doc. 95 at PageID# 3877). Thus, Allianz's revised written
discovery requests come after the filing of the discovery motions and the memoranda in opposition.

19 Second, the Court has not held an informal discovery conference with the parties *19 regarding the written
discovery objections. See S.D. Ohio Civ. R. 37.1; see Judge Timothy S. Black's Cincinnati Civil Procedures at
§2.7 The present situation is a good illustration of the need for such a conference. The un-conferenced issues
are unwieldy and still-developing. Allianz states that a shift in the posture of the underlying litigation has
occasioned a narrowing of its own requests. Luxottica states that it cannot be made to prematurely litigate the

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

issues in the underlying litigation. Luxottica's standing objection to the relevance of many of the requests is
indeed inexact, to the Court's mind, but it is also unclear if Luxottica has had a chance to reformulate those
objections to respond to recent developments. Ultimately, the Court is simply without the necessary context to
apply these arguments to the question of which of the requests are potentially irrelevant or overboard.8 For now,
the Court will permit Allianz to serve revised written discovery requests and otherwise deny Allianz's requests
to compel response to written discovery.
7 https://www.ohsd.uscourts.gov/sites/ohsd/files//civil%20procedures%20in%20cincinnati%2011-13%20%282%29.pdf

8 The Court offers the following thoughts only in the hope that the parties may avoid further disputes. The Court sees no

improper nesting of sub-parts in Allianz's revised interrogatories. As for the revised requests for production (“RFPs”), a
few seem unduly broad or irrelevant at first glance and at face value: 11, 12, 13 and 15. (Doc. 82). Other revised RFPs
may be overly burdensome but such would depend on circumstances and the proffer of relevance and/or explanation of
burden: 16, 20, and 22. (Id.). On the other hand, the Court finds it reasonable for Allianz to request documents
presented to the court in the underlying litigation and is skeptical that Luxottica cannot produce documents that it
“intends” to use at trial. The Court finds little reason, moreover, to limit discovery because it overlaps with the
underlying litigation. It is unavoidable that, absent a bifurcation and a stay, the parties will concurrently litigate some of
the issues that overlap between this case and the underlying litigation.

20 F. Other Relief Requested by Allianz *20

Allianz has requested other relief. The Court will discuss these requests only in brief.

First, Allianz requests an audit of Blank Rome's files relevant to the underlying litigation. (Doc. 82 at PageID#
2573). Allianz asserts that Blank Rome must submit to an audit because of an agreement between the parties
about the provision of legal services to the insured. (Id.). Even assuming that that agreement is legitimate, the
Court is not convinced of its power to order Blank Rome, a party that is not before it, to do anything. Moreover,
the Court is also unsure of the wisdom of, essentially, enforcing a contract that heretofore has played no part in
the legal proceedings before it. The Court, in its discretion, will decline to order an audit of Blank Rome-at
least on an under-developed record and in an order otherwise directed to discovery obligations between the
parties. Additionally, as described above, the Court struggles to figure out what more Allianz needs from the
underlying litigation in order to assess its defense and indemnity obligations. Thus, Allianz's request is denied.

Similarly, the Court will avoid straying into other matters of communication between Blank Rome and Allianz.
Allianz states that “[t]he Court should issue an order that Allianz be permitted to confer with AccuFit class
counsel, with Luxottica's counsel involved if they wish to be.” (Doc. 82 at 18). The relevant context here is
some standoffishness in the relationship between Luxottica's counsel here, Allianz's counsel here, and Blank
Rome. (Id.). The Court agrees open lines of communication are probably advisable. But it is another thing to
“order” communication involving non-parties. Even if the Court had no questions about its authority to order a
21 phone call involving a non- *21 party, the Court, in its discretion, finds it imprudent to do so. Thus, Allianz's
request is denied.

Allianz states it has subpoenaed third parties and received no responsive documents or else a deficient
response. (Doc. 82 at PageID# 2574). The third parties in question are Aon, the broker in the Allianz-Luxottica
relationship, and Sedgwick, a claims management service which acted as an intermediary between Allianz and
Luxottica. (Id.). While Allianz has raised these issues in discovery conferences before the Court, the Court has
not had an opportunity to hear from any representatives from Aon or Sedgwick before considering the relief
that Allianz requests against them. Thus, the Court has no real awareness of why Aon or Sedgwick have not
responded to the subpoena, or responded with alleged deficiencies, as the case may be. Allianz's briefing says

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 Luxottica of Am. Inc. v. Allianz Glob. Risks U.S. Ins. Co. 1:20-cv-698 (S.D. Ohio Apr. 22, 2022)

nothing of a meet-and-confer of any kind with Aon. Allianz complains of deficiencies in Sedgwick's log but
has not detailed is efforts to discuss the issues with Sedgwick. For these reasons, the Court finds the dispute
unripe and will decline to issue an order compelling production from either Aon or Sedgwick.

IV. CONCLUSION

For the foregoing reasons:

1. Plaintiff Luxottica's motion to compel (Doc. 81) is granted in part as follows:

a. Defendant-Allianz SHALL PRODUCE documents at Allianz privilege log numbers 1182, 1389, 1636, 1458,
522, 1626, 1627 in full. Privilege log numbers 520, 1632 and 1370 SHALL BE PRODUCED, but Allianz may
redact indemnity figures as work product as to those documents.

22 b. Plaintiff's motion to compel (Doc. 81) is DENIED in all other respects. *22

2. Defendant-Allianz's omnibus discovery motion (Doc. 82) is DENIED .

3. Defendant's motion for leave to file a sur-reply (Doc. 96) is DENIED as MOOT .

23 IT IS SO ORDERED. *23

11