ARKWRIGHT MUT. INS. v. National Union Fire Ins., Misc. No. 91-00028-CH.

• Decision Date: 16 August 1991
• Docket Number: Misc. No. 91-00028-CH.
• Citation: 771 F. Supp. 149
• Parties: ARKWRIGHT MUTUAL INSURANCE COMPANY, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant.
• Court: U.S. District Court — Southern District of West Virginia

771 F. Supp. 149

ARKWRIGHT MUTUAL INSURANCE COMPANY, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant.

Misc. No. 91-00028-CH.

United States District Court, S.D. West Virginia, Charleston Division.

August 16, 1991.

Bower and Gardner, New York City, for plaintiff.

Stephen J. Schlegel, New York City, for defendant.

W. Henry Lawrence, IV, Steptoe & Johnson, Clarksburg, W.Va., for Murray Sheet Metal.

ORDER

HADEN, Chief Judge.

Pending is the Defendant's motion to compel deponent Murray Sheet Metal Company, Inc. (Murray) to produce documents pursuant to a subpoena duces tecum. Murray refused to produce the documents based upon work product and attorney-client privileges. The Court concludes that the documents are protected by the work product privilege and accordingly, the Court DENIES the motion of Defendant National Union Fire Insurance Company of Pittsburgh, PA, (National Union) to compel Murray to produce the withheld documents.

This miscellaneous action stems from a fire which occurred at the General Electric Plastics facility in Washington, West Virginia. Murray was performing renovation work on the building when on April 4, 1990, a fire broke out due to an unknown origin. As a result of the damages sustained in this fire, General Electric submitted a claim to its insurer, Arkwright Mutual Insurance Co. (Arkwright) for fire damage and PCB damage allegedly resulting from the fire. On June 18, 1990, Arkwright notified its reinsurer, National Union of the incident. National Union declined to pay Arkwright asserting that it was an uncovered loss. Arkwright subsequently filed suit in the Unieted States District Court for the Southern District of New York over National Union's agreement to reinsure portions of the risk Arkwright insured at the General Electric Plastics facility in Washington, West Virginia.

National Union subsequently served a subpoena duces tecum on Murray commanding the keeper of the records to appear and produce certain documents. Murray produced the keeper of records and numerous non-privileged documents while asserting that other documents were protected by the work product and attorney-client privileges. The asserted privileges covered documents relating to correspondence and notes of meetings with counsel, witness interviews and statements, internal memoranda by Murray officials and expert documents including medical reports for Murray employees and PCB test results. In Murray's memorandum in opposition to National Union's motion to compel, a privileged documents log is included as an exhibit.

The work product privilege protects documents prepared in anticipation of litigation. Rule 26(b), Federal Rules of Civil Procedure. Although Murray is not a party to the dispute between Arkwright and National Union, Murray can assert the work product privilege. The privilege applies as long as the document is prepared in contemplation of some particular litigation. The probability of such future litigation...