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Challenging Insurers' Efforts to Obtain Insureds' Privileged Communications
Insureds embroiled in litigation with underlying claimants frequently are confronted with demands from their insurers that can place their litigation position at risk. One issue that often arises is whether an insured must and should provide requested privileged materials to its insurer in connection with the insurer's coverage investigation or in coverage litigation. Where the insurer has accepted the insured's defense of litigation and thus its interests appear to be aligned with the insured in a successful resolution of the underlying matter, the insured may have difficulty in refusing to provide certain materials. However, as is often the case, 1) an insurer will reserve rights and then seek all information relevant to the underlying matter, regardless of its privileged status, or 2) deny coverage and seek that information in the context of coverage litigation. Insureds should be aware of possible risks that can be created if they comply with requests for privileged information, and that despite the insurers' claims of a “common interest” or that the privileged information is “at issue,” significant case law protects these materials from production.
Danger of Production
Courts have long recognized that the interests of a policyholder facing ongoing underlying litigation are divergent from those of an insurer who has refused to provide a defense for that litigation. See, e.g., Montrose Chem. Corp. v. Superior Court, 25 Cal. App. 4th 902, 910 (1994) (insured suffers prejudice when it “is compelled to fight a two-front war, doing battle with the plaintiffs in the third-party litigation while at the same time devoting its money and its human resources to litigating coverage issues with its carriers.”). As a result, such an insurer is not entitled to access its policyholder's privileged or work product materials by asserting the legal fiction that it has a “common interest” with the policyholder in defeating the underlying claims. See Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408, 418 (D. Del. 1992). Rather, many courts have recognized that the insurer's interests in such a case are often more aligned with the underlying plaintiffs than with its embattled policyholder. See Montrose, 25 Cal. App. 4th at 910 (“the insurer must not be permitted to join forces with the plaintiffs in the underlying actions as a means to defeat coverage.”)
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.