Fleisher v. Phoenix Life Insurance

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Evidence

New York Law Journal

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Magistrate Judge James Francis

Phoenix Life allegedly violated contractual obligations by improperly raising cost-of-insurance (COI) rates on premium-adjustable, universal life insurance policies. Towers Watson (TW) provided consulting services to Phoenix, analyzing the COI increases at issue. In July 2012 TW objected to a June 20 subpoena seeking documents related to the COI increases, including those provided to the New York State Department of Insurance. TW provided the documents to Phoenix's counsel, which claimed their immunity from discovery under the work product doctrine and attorney-client privilege. However, TW did not supply a privilege log until after plaintiffs sought an order compelling compliance with the June 2012 subpoena. The court compelled TW's production of the subpoenaed documents, finding TW forfeited any claim of privilege or work product protection by not submitting an adequate privilege log in a timely manner. In addition to the failure to submit a meaningful privilege log, the court concluded that even if Phoenix had not forfeited its privilege and work product claims, it failed to prove those claims. It gave the court no basis for differentiating between business-related documents and those related to its legal concerns.

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