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Posted: August 17, 2015

Court Orders Insurer to Redo Production With Bates Numbers and Detailed Privilege Log

On August 5, 2015, Justice Ritholtz of the Queens County Commercial Division issued a decision in Algu v. Rasiawan, 2015 NY Slip Op. 51146(U), ordering a party to redo its document production.

In Algu, the court ordered a party to redo its document production. The introduction to the court’s decision explains it all:

Character actress Clara Peller became an instant celebrity in 1984 for a television commercial for the Wendy’s fast food restaurant chain where, as an irritable and crotchety customer, after searching in vain for assistance to complain about the underwhelming portion of meat served her on an oversized bun, she finally voiced her outrage, yelling: “Where’s the beef?” This Court, following an attempted in camera inspection of an insurance company’s files in this wrongful death action, shares the frustrated outrage of Ms. Peller’s character. The insurer’s unhelpful manner of presentation of papers to the Court and its blanket approach in resisting disclosure, while avoiding all specifics of its claim of privilege, is, indeed, exasperating. The circumstances of the present case are so striking, and the events encountered herein so likely of repetition in other litigations, that publication of this decision will be of interest to the Bench and Bar, serve the interests of justice, and, remind counsel of their responsibilities to a tribunal.

What did the defendant do wrong:

Pursuant to a so-ordered stipulation of November 13, 2014, the Court stated it would conduct an in camera inspection of the entire insurer’s claim file, including inspection records and photographs. A paralegal of the counsel for the defendants, sent to the Court “a CD containing Allstate Insurance Company’s fire file,” and did not provide any elaboration.

When the Court examined the compact disc, it appeared to be at least 2,000 pages long, with writing on both sides of the same sheet, and without any Bates-stamping of each page. No privilege log accompanied the papers. When this Court asked its Chambers staff to contact counsel for the insurer to provide a hard copy of the papers, counsel complied. Counsel for the insurer did not submit a written privilege log or any written memorandum or similar document in support of its position of privilege. Instead, defense counsel stated to Chambers, orally, that it was opposed to production of the entire file.

When the Court’s staff asked the insurer’s counsel to provide documents with Bates-stamping and accompanied by a privilege log and a supporting memorandum of law, the response to the judicial inquiry was steadfast adherence to its position. The response of avoidance and ignorance is described in the Bible. After Cain killed his brother Abel, in response to God’s question seeking Abel’s whereabouts, Cain first denied knowledge and then retorted with self-righteous indignation, sarcasm, and rationalization, asking, “Am I my brother’s keeper?” See, Genesis 4:9. Thus, as exemplified by Cain petulantly addressing the Ultimate Judge, or the response by the insurer in the instant case to the Court’s repeated demands for a privilege log and a set of Bates-stamped documents, denial of responsibility is not new.

The only thing we wonder about this decision is how the defendant’s counsel managed to get away without being sanctioned.

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