The case involves a dispute over Utica Mutual Insurance Company’s claims for reinsurance proceeds from Munich Re. One of Munich Re’s defenses in the litigation asserts that Utica “strategically orchestrated a settlement structure” with its insured “for the sole purpose of either creating reinsurance coverage which did not exist or maximizing a reinsurance recovery to which, in good faith, Utica is not entitled.” To support its defense, Munich Re sought to compel production from Utica of certain redacted handwritten notes that were written on a draft mediation statement that Utica claims were authored by an attorney from the law firm that represented it during the underlying insurance coverage dispute between Utica and its insured. Munich Re based its motion to compel the document on (1) the “crime fraud exception” to the attorney-client privilege, and (2) Utica’s inability to specifically identify the author of the handwritten notes.

The magistrate judge denied Munich Re’s motion to compel, and the district court affirmed the decision. Regarding the crime-fraud exception, the court found no clear error in the magistrate’s finding that Munich Re failed to establish that the handwritten notes were made in furtherance of Utica’s alleged attempt to defraud its reinsurers. And regarding the unknown identity of the notes, the court upheld the magistrate’s conclusion that the notes were authored by an attorney, notwithstanding that one of Utica’s outside attorneys testified that the notes were not in his handwriting or in the handwriting of one of his partners. The court upheld the magistrate’s ruling that “the identity of the attorney was irrelevant because the contents of the notes clearly establish that this was a notation by a lawyer for Utica relating to the reinsurance implications of [the] settlement.” Utica Mutual Insurance Co. v. Munich Reinsurance America, Inc., Case No. 6:12-CV-196 (USDC N.D.N.Y. Apr. 25, 2016; Jan. 13, 2017) (Magistrate Ruling & Order on Appeal).