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Hartford Fire Ins. Co. v. Garvey - 109 F.R.D. 323 (N.D. Cal. 1985)


The attorney-client privilege is narrowly construed. The proponent of the privilege carries the burden of establishing all elements of the privilege, including confidentiality, which is not presumed, and non-waiver. The confidentiality element and waiver are closely related inasmuch as any voluntary disclosure inconsistent with the confidential nature of the attorney client relationship waives the privilege.


Defendant Brian Garvey, claiming that his yacht was stolen, sought to collect on an insurance policy issued by Plaintiff Hartford Fire Insurance (Hartford). Hartford refused the claim and brought action for rescission or declaratory relief, alleging that the policy was secured on the basis of material misrepresentations, that Garvey failed to pay the premium for the policy, and that the yacht was not stolen. Hartford filed a motion for protective order seeking the return of documents inadvertently produced to Garvey during discovery on the grounds of attorney-client privilege and work product immunity. 


Were the documents protected by the attorney-client privilege?




The court denied the motion, concluding that the documents were not protected by the attorney-client privilege or work product immunity because the necessary elements of the privilege were not shown and Hartford voluntarily waived any privilege by producing the documents. The court found that reasonable available precautions were not taken, the scope of the discovery was quite limited allowing precautions to be taken, and that the disclosure was complete in that the contents of the documents were probably learned on inspection and copies of the documents were actually turned over.

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