QBE Insurance v. Jorda Enterprises, Inc.
2012 U.S. Dist. LEXIS 132020
S.D. Fla.2012Background
- Katrina-related subrogation suit; Judge Gold granted Jorda summary judgment against QBE and referred its sanctions motion to Goodman.
- Jorda seeks Rule 11 and 28 U.S.C. §1927 sanctions against QBE, its law firm, and individual attorneys.
- Sanctions hearing scheduled; Jorda opposed an evidentiary hearing, QBE sought one.
- QBE moved in limine (No. 190) to permit in camera review of privileged documents and ex parte testimony; seeks detailed procedure, including possible sidebar questioning.
- Court denied QBE’s in limine motion, clarifying privilege waiver risks and QBE’s control over whether privilege is placed at issue, and describing potential waiver scope depending on hearing strategy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether in camera review of privileged material at the hearing is permissible | QBE seeks ex parte in camera review of privilege material. | Jorda opposes in camera ex parte procedure as improper and ripe for privilege abuse. | Denied; procedure not authorized. |
| Whether affirmative reliance on privilege would waive it and extend to other materials | QBE may rely on privilege without waiving it entirely. | Affirmative reliance triggers waiver under the waiver-by-affirmative-use doctrine. | Waiver possible if QBE relies on privileged information; no waiver yet absent disclosure. |
| Whether Highmark supports ex parte/in camera treatment in Rule 11 context | Highmark allows extraordinary privilege accommodations. | Highmark is distinguishable and does not compel in camera proceedings if privilege is at issue. | Distinguishing; does not favor allowing privileged material to defend the motion if it places privilege at issue. |
| Scope of potential, and determine-able, waiver if disclosure occurs | Waiver scope should be broad if substantial privileged material is disclosed. | Waiver scope depends on the nature and amount of disclosed materials; no bright-line test. | Cannot determine scope until events unfold; smaller disclosures yield narrower waiver. |
| Whether QBE may preserve privilege by not disclosing and still contest sanctions | QBE can withhold privileged materials and respond with non-privileged evidence. | Disclosing might be necessary if privilege is at issue; otherwise privilege objections can be raised. | QBE may proceed without disclosure or may disclose and risk waiver; otherwise may rely on privilege objections. |
Key Cases Cited
- In re EchoStar Commc’ns Corp., 448 F.3d 1294 (Fed. Cir. 2006) (waiver when party relies on privileged material; work-product/attorney-client scope)
- Chavis v. North Carolina, 637 F.2d 213 (4th Cir. 1980) (waiver of work-product when attorney’s materials are relied upon)
- Sedco Int’l, S.A. v. Cory, 683 F.2d 1201 (8th Cir. 1982) (recognizes waiver when client places relationship at issue and relies on attorney’s advice)
- Abbott Labs. v. Alpha Therapeutic Corp., 200 F.R.D. 401 (N.D. Ill. 2001) (waiver by injecting issue of its own negligence into the case)
- Fort James Corp. v. Solo Cup Co., 412 F.3d 1340 (Fed. Cir. 2005) (waiver considerations in attorney-client communications and related defenses)
- In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) (limits on work-product waiver scope; act-intensive issues)