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As Gilbert Heintz & Randolph prepared for an insurance recovery trial today against Continental Casualty Co., its lawyers were determined to get into evidence a document they say would clinch their case. One idea was to subpoena San Francisco’s Carroll, Burdick & McDonough, which has often represented Continental in similar litigation. But a San Francisco commissioner derailed that tactic, quashing the subpoena last year. Now Carroll, Burdick claims Washington, D.C.-based Gilbert Heintz may be trying to “thwart” that order by attempting to pump privileged information out of Continental’s ex-employees. Gilbert Heintz partner August Matteis Jr. acknowledges that one of his firm’s lawyers called Alan Wells — a former assistant vice president at Continental — but he denies that his firm has crossed any ethical lines, as Carroll, Burdick has suggested. “When we speak to former employees generally, we’re very, very careful in what we ask them about and what we don’t,” Matteis said. “It’s never a good idea to seek privileged information. That’s pretty clear. And that’s something that we would never do.” In the trial scheduled to begin today in New York, Gilbert Heintz is squaring off with Continental over the insurer’s liability in an asbestos class action against an insulation contractor. Matteis says Continental has handed over an important document in discovery that he is anxious to admit into evidence. “We want to get a foundation for this document — who created it, where it came from,” Matteis said. Carroll, Burdick, which has no direct role in the current case, asserts that Gilbert Heintz associate Scott Godes asked Wells about both his and Carroll, Burdick’s role in a review Continental had done of policyholders’ asbestos claims. Carroll, Burdick claims that Gilbert Heintz is violating the attorney work-product privilege that it “successfully asserted” when San Francisco Superior Court Commissioner Bruce Chan stamped out a subpoena for documents last year. “Our objection is to their inquiry about our role in the asbestos project,” Carroll, Burdick partner Rodney Eshelman said. But Matteis, noting that Chan’s short order offered no reasoning for his decision to quash the subpoena, contends that the S.F. commissioner didn’t hold that anything was privileged. And Matteis points out that in the New York case, a discovery referee had ordered Continental to hand over some documents related to the asbestos review. While he doesn’t go so far as to suggest his lawyers can ask whatever they want about the insurer’s review, he maintains Godes’ questions were safely within bounds. Joseph McMonigle, chair of the professional liability group for San Francisco’s Long & Levit, says the boundaries are more murky when a lawyer is seeking information from a witness rather than a law firm. “When you go to the witness himself or herself, it’s more difficult to determine whether or not that is privileged,” he said. Carroll, Burdick and Gilbert Heintz are frequent opponents, and the San Francisco firm says it fears that the D.C. firm will use any information it’s getting to solicit clients and litigate in future cases against Continental. Matteis counters that the S.F. firm’s concern is a strategic one on behalf of its client. “This is all really an attempt to prevent us from offering into evidence one specific document” that would go a long way toward a victory in New York, Matteis said. “This is just more of the same gaming.” Eshelman says this isn’t about any one piece of paper and notes that his firm tried a cease-and-desist letter before filing a complaint. “The purpose of the lawsuit is to get them to stop calling executives on information that they know to be privileged,” he said. “If they did not mean to do it and promise not to do it again � we’d be happy to withdraw [the complaint].”

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