Feld v. Fireman's Fund Insurance, 292 F.R.D. 129

FDIC action to recover $2.4M in unpaid defense costs from FFIC for Feld’s Underlying Action defense; FFIC agreed to defend under reservation of rights but disputed coverage and hourly rates; Fulbright & Jaworski represented Feld and billed at rates allegedly exceeding agreed caps; Feld sought reimbursement of $4.539M, FFIC paid >$2.1M, withheld ~$2.42M; discovery dispute over FFIC’s Requests for Production and Interrogatories seeking materials on rates, reasonableness, and communications; court to narrow scope and address privilege/waiver issues; diversity case applying DC law for privilege; underlying action culminated in Feld’s defense and favorable judgments affirmed on appeal; Feld claims agreement to fee rates and reasonableness were central to coverage dispute.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of discovery	Feld argues requests are overbroad and mostly irrelevant	FFIC contends material on rates and reasonableness is discoverable	Discovery narrowed to relevant, non-privileged items on rates and reasonableness
Privilege applicability	Feld asserts attorney-client privilege protects communications	FFCI argues waiver or implied waiver reduces protection	Privilege narrowed; Feld must produce non-privileged materials and a privilege log; potential implied waiver acknowledged on rate discussions and related communications
Implied waiver (rates)	Privilege should protect all attorney communications, not just related to rates	Feld placed rate discussions at issue by seeking indemnification and disputing rate agreement	Feld waived privilege as to communications relating to FFIC’s position on hourly rates and the agreement/lack thereof
Draft invoices and their relevance	Drafts may be irrelevant	Drafts help show reasonableness and changes before final invoices	Draft invoices may be relevant; Feld must produce drafts for reasonableness and rate issue
Other insurance and scope of documents	Evaluations of other insurance are not relevant to this dispute	Could reveal coverage if charged to FFIC or other insurance	Production limited to documents related to FFIC’s policy and the Underlying Action; other insurance evaluations not required unless tied to FFIC payments

Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143 (D.C. Cir. 1997) (implied waiver when indemnification sought for fees and billing statements)
Potomac Elec. Power Co. v. California Union Ins. Co., 136 F.R.D. 1 (D.D.C. 1990) (waiver by putting at issue conduct in underlying proceedings)
United States v. Exxon Corp., 94 F.R.D. 246 (D.D.C. 1981) (implied waiver when good faith reliance defense raises attorney communications)
Minebea Co. v. Papst, 355 F. Supp. 2d 518 (D.D.C. 2005) (waiver when client relies on or disputes counsel’s representations)
Berliner Cor. & Rowe LLP v. Orian, 662 F. Supp. 2d 130 (D.D.C. 2009) (attorney-client privilege scope and disclosure for fee-related materials)
Wender v. United Servs. Auto. Ass’n, 434 A.2d 1372 (D.C. 1981) (principles on confidentiality and privilege scope)
In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) (confidential communications require protection when opted for privilege)
Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975) (three-factor test for implied waiver of privilege)