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EFG Bank AG v. Licoln Nat'l. Life Ins. Co. (In re Lincoln Nat'l COI Litig.)

United States District Court for the Eastern District of Pennsylvania

March 9, 2020, Decided; March 9, 2020, Filed

No.: 16-cv-06605-GJP; No.: 17-cv-02592-GJP

Opinion

MEMORANDUM

Plaintiffs and Lincoln National Life Insurance Company asked the Special Master to review in camera certain documents that Lincoln claimed were privileged. The Special Master issued an Opinion ruling that all or portions of twenty-one documents were not privileged and thus must be disclosed to the Plaintiffs. Lincoln now objects to that Opinion as it relates to ten documents. The Court overrules [*7]  Lincoln's Objections and adopts the Special Master's Opinion.

Before this litigation arose, Lincoln, through its outside counsel (Greenberg Traurig, LLP) retained two consulting firms to help update its mortality assumptions and set new cost of insurance (COI) rates. See (Joint Statement of Discovery Disputes Ex. 2, at ¶¶ 3-5, ECF No. 62-12) (Smith Decl.).1 The Consultants worked closely "with Lincoln non-legal personnel" regarding "the eventual redetermination of COI rates"; Lincoln "did not regard such work as privileged or protected work product." (Id. at ¶ 7.) Rather, it intended the attorney-client privilege to attach to only those "privileged communications concerning issue-specific legal advice [Greenberg Traurig] provided to Lincoln." (Id.) That said, Lincoln did envision that its in-house lawyers and Greenberg Traurig might rely on the consultants "in connection with the provision of legal advice to Lincoln." (Id. at ¶ 6.) But as it turned out, "[t]he legal questions presented to [Greenberg Traurig] did not require [it] to rely on assistance regarding actuarial matters from either of the Consultants." (Joint Statement of Discovery Disputes Ex. 4, at ¶ 8, ECF No. 62-17) (Berlin [*8]  Decl.).

During discovery, Lincoln produced two reports the consultants had created but refused to turn over related documents that it claimed were privileged. See (Joint Statement of Discovery Disputes 1-2, 5-7, ECF No. 62). According to the Plaintiffs, the consultants' reports were privileged, so by producing the reports Lincoln had waived any claim of privilege covering documents of the same subject matter. See (id. at 1-5). Lincoln, however, argued that the reports were not privileged, meaning there had been no waiver. See (id. at 7-9).

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2020 U.S. Dist. LEXIS 40718 *; 2020 WL 1157172

IN RE: LINCOLN NATIONAL COI LITIGATION;EFG BANK AG, CAYMAN BRANCH, et al., Plaintiffs, v. THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, Defendant.

Prior History: In re Lincoln Nat'l Coi Litig., 2019 U.S. Dist. LEXIS 224986 (E.D. Pa., Dec. 5, 2019)

CORE TERMS

documents, legal advice, privileged, communications, consultants, attorney-client, discovery dispute, facilitated, in-house