If you oppose ACP or WP during discovery, you cannot use those same documents at trial, held in August a Mississippi federal court. Mahli, LLC v. Admiral Insurance Co., Civ. A. No. 1:14cv175-KS-MTP, 2015 U.S. Dist. LEXIS 112542 (S.D. Miss. Aug. 25, 2015).
This is an insurance case involving “a dispute regarding insurance coverage for a fire loss” occurring at a hotel owned and operated by Mahli and insured by Admiral Insurance.
In discovery “Mahli’s interrogatories sought the information gained, confirmed, or resulting from . . . [Admiral’s] investigation, including the content of any oral statements given by Mahli’s employees, guests, or business associates. Admiral’s responses asserted objections based on the attorney-client privilege and/or work-product doctrine” (internal quotation marks and citations omitted.)
At trial, Admiral tried to use those same statements that had been shielded from plaintiff during discovery. Plaintiff move to exclude the evidence.
The district court (Southern District of Mississippi) sided with plaintiff:
Neither the attorney-client privilege nor work-product doctrine is designed to be used as a shield and a sword. […]
The Court finds that it would be patently unfair for Admiral to hide the substance of Portwood, Moore, Lampkin, Demo, and Robinson’s statements to Tubertini behind the attorney-client privilege or work-product doctrine during discovery, and to allow Admiral to use the statements against Mahli at trial.
[…]
Even assuming, arguendo, that the result of Admiral’s failure to disclose could be considered harmless, the Court disapproves of this litigation tactic.
Among other cases, the court relied on United States v. Duke Energy Corp., 208 F.R.D. 553, 558 (M.D.N.C. 2002), holding that “[a] party may not use a privilege (or work product) as a shield during discovery and then hammer it into a sword for use at the trial.”
dmiral could not introduce those statements in evidence.
See full decision
For more information, Nathan M. Crystal