Aetna Cas. and Sur. Co. v. Certain Underwriters at Lloyd's, London

• Decision Date: 08 June 1998
• Parties: , 1998 N.Y. Slip Op. 98,322 AETNA CASUALTY AND SURETY COMPANY, Plaintiff, v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, et al., Defendants.
• Court: New York Supreme Court

Page 734

676 N.Y.S.2d 734

176 Misc.2d 598, 1998 N.Y. Slip Op. 98,322

AETNA CASUALTY AND SURETY COMPANY, Plaintiff, v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, et al., Defendants.

Supreme Court, New York County.

June 8, 1998.

Sheft Golub & Kamelet, New York City (Gerald A. Greenberger, of counsel), and Lord Bissell & Brook, Chicago, IL (Robert B. Robinson, of counsel), for defendants.

Chadbourne & Park, L.L.P., New York City (Kenneth R. Pierce, of counsel), and Washington, DC (Philip S. Goodman, of counsel), for plaintiff.

BARRY A. COZIER, Justice.

Defendants (collectively "the London Reinsurers") move (motion sequence 020) for renewal or reargument of the February 17, 1998 order (Friedman, J.; opinion 176 Misc.2d 605, 676 N.Y.S.2d 727) denying in part their request to compel the return of documents inadvertently produced in pending litigation.

Plaintiff Aetna Casualty and Surety Company ("Aetna") moves (motion sequence 019) to unseal the February 17, 1998 order. The London Reinsurers cross-moves for an order requiring Aetna, by a date certain, to return the documents that it previously agreed to return or that were ordered returned by the Court.

Background

The instant case involves Aetna's demands for payments from the London Reinsurers under certain reinsurance contracts issued between 1960 and 1969. These demands relate to Aetna's execution of a confidential settlement agreement with its policyholder, Koppers Company, Inc. ("Koppers"), in March 1995. See, Koppers Co. Inc. v. Aetna Casualty & Surety Co., 98 F.3d 1440 (3d Cir.1996).

In late 1997, the London Reinsurers apparently became aware that in March 1997, they had inadvertently produced to Aetna approximately 1,300 pages of documents. The London Reinsurers contended that the documents were privileged and/or irrelevant to the case. Among these documents were summaries of meetings or "workshops" of the Environmental Claims Reinsurance Group ("ECRG"), attended by representatives of various London-based insurance companies. Although some of the persons present at the ECRG meetings represented reinsurers involved in the instant case, most are not involved here. After extensive negotiations, Aetna agreed to return approximately 730 pages of these materials. As for the remaining documents, by order dated February 17, 1998, Justice Friedman determined that Aetna was required to return 21 documents and could retain 17, as the latter group was not deemed to be covered by the attorney-client privilege or entitled to work product protection.

The London Reinsurers now move for renewal or reargument of Justice Friedman's February 17 order, alleging, inter alia, that (1) the court misunderstood the nature of the London insurance market and the ECRG meetings; (2) the participants at the ECRG meetings were directly involved in lawsuits or arbitrations relating to reinsurance claims; (3) the documents in question were prepared for such litigation and, accordingly, are attorney work product and/or protected by the attorney-client privilege; and (4) certain documents are irrelevant to the present action and should not be disclosed.

Aetna maintains that the communications at issue were commercial-related and not subject to the attorney-client privilege. Aetna contends that the ECRG meetings involved multiple parties with diverse interests and, accordingly, are not confidential. Further, Aetna claims, the documents cannot be considered attorney work product, because the documents do not address any ongoing or anticipated litigation, but instead deal with efforts to avoid litigation in general.

Discussion

Motion to Renew

A motion to renew "is intended to draw the court's attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court's attention." William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 (1st Dep't 1992) citing Matter of Beiny v. Wynyard, 132 A.D.2d 190, 522 N.Y.S.2d 511 (1st Dep't 1987). Renewal is inappropriate in the instant case because the London Reinsurers have simply failed to allege any new or additional facts. Moreover, even if new or additional facts had been stated, the London Reinsurers have failed to provide any reason for not having submitted such material on the original motion, as is required. See, Creole Enterprises, Inc. v. Giuliani, 240 A.D.2d 279, 279, 659 N.Y.S.2d 742, (1st Dep't 1997). Rather, the London Reinsurers' motion is properly characterized as one for reargument. See, Mariani v. Dyer, 193 A.D.2d 456, 458, 597 N.Y.S.2d 358 (1st Dep't 1993) ("In the absence of any excuse why this affidavit was not previously submitted, the application was properly characterized as one seeking reargument.") citing Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588 (1st Dep't 1979).

Motion to Reargue

A motion for leave to reargue pursuant to CPLR 2221 "may be granted only upon a showing 'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision.' " William P. Pahl Equipment Corp., supra, 182 A.D.2d, at 27, 588 N.Y.S.2d 8, quoting Schneider v. Solowey, 141 A.D.2d 813, 529 N.Y.S.2d 1017 (2d Dep't 1988). Reargument does not provide a party with an opportunity to advance new arguments. Rubenstein v. Goldman, 225 A.D.2d 328, 638 N.Y.S.2d 469 (1st Dep't 1996). Nor may a party seek reargument to address issues previously decided. See, Bliss v. Jaffin, 176 A.D.2d 106, 108, 573 N.Y.S.2d 687 (1st Dep't 1991).

The London Reinsurers' motion for reargument must be denied. The London Reinsurers have failed to meet their burden to provide this Court with a basis upon which to grant a motion for reargument, as there is simply no law or material fact that Justice Friedman overlooked or misapprehended in his February 17 order.

Motion to Unseal February 17, 1998 Order

Also before the Court is Aetna's motion to unseal Justice Friedman's February 17, 1998 order. Throughout the litigation of this case, the secrecy of related documents has been of concern. On a number of occasions, Justice Friedman granted Aetna leave to file certain papers under seal, as the settlement agreement with Koppers includes a provision obligating the parties to keep the agreement confidential. Furthermore, in a confidentiality stipulation and order dated January 23, 1997, the parties agreed that documents produced in discovery that are marked "confidential" are to be "used solely for the purpose of the prosecution or defense of this Action and not for any business or other purposes whatsoever." Although no party to the action moved to seal the entire file, on September 10, 1997, Justice Friedman issued the following order, sua sponte:

Effective immediately, the entire file in this action is sealed. The court finds good cause for sealing pursuant to 22 NYCRR 216.1 in light of the numerous references throughout the file to confidential documents belonging to third parties. Access to the file shall be had only by counsel of record. A court order shall otherwise be required.

Aetna contends that because the February 17 order maintains the confidentiality of documents belonging to third parties, as it does not provide detailed information, the order should not be sealed. Further, Aetna claims, (1) the London Reinsurers are attempting to use the sealing order to shield themselves from discovery in other, similar actions and (2) in the interest of judicial economy, Aetna should be able to provide other courts with the February 17 order.

The London Reinsurers dispute Aetna's contentions, arguing that Justice Friedman's sealing order embraces the entire file, including court decisions. The London Reinsurers also maintain that Aetna's intention to use the February 17 order in related actions would violate the confidentiality stipulation and order.

Though ordinarily trials and judicial proceedings are open to public view, and the public has an interest in the disclosure of court records, the public's right to inspect and copy judicial records is not absolute nor unrestricted, and is a matter of judicial discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Indeed, the Appellate Division has recognized that the

right to inspect and copy judicial records is not absolute, particularly where such records are a source of business information which might harm a litigant's competitive standing, and the determination of whether access to such records is appropriate is best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. (citations omitted).

Matter of Crain Communications, Inc. v. Hughes, 135 A.D.2d 351, 351, 521 N.Y.S.2d 244 (1st Dep't 1987), aff'd, 74 N.Y.2d 626, 541 N.Y.S.2d 971, ...