Justice Joseph Pastoressa
Property owner Collins had a homeowners’ policy with insurer First Liberty. The policy was renewed and issued to Collins’ estate. The premises sustained water and mold damage from pipes freezing and rupturing. After an investigation, it was determined heat was not maintained, as required, and coverage was denied. Executrix commenced a breach of contract action. Plaintiffs’ counsel argued claim notes sought were discoverable as privilege shielding them from disclosure was waived when defendant’s employees reviewed unredacted versions in preparation for depositions. The court found plaintiff’s counsel’s argument unavailing, noting a document protected by an unqualified privilege was not waived by a party merely by permitting its own employees to review it in preparation for a deposition. As there was no dispute the persons who reviewed the notes were employed by defendant, the privilege was not waived, but an in camera review of the unredacted claim notes was necessary. The court noted striking defendant’s answer was unwarranted as plaintiff failed to show defendant’s failure to produce documents responsive to a second notice demand was willful, contumacious or in bad faith. The motion seeking disclosure of claim notes was held in abeyance.
