Coregis Insurance Company v. Law Offices of Carole F. Kafrissen, P.c.

* Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-4517
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COREGIS INSURANCE COMPANY,
Appellant
v.
LAW OFFICES OF CAROLE F. KAFRISSEN, P.C.;
CAROLE F. KAFRISSEN, Individually; CYNTHIA CLARK
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 98-cv-06769)
District Judge: The Honorable Eduardo C. Robreno
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ARGUED October 31, 2002
BEFORE: NYGAARD and WEIS, Circuit Judges and IRENAS,* District Judge.
(Filed January 27, 2003)
Jeffrey A. Goldwater, Esq.

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Bryan G. Schumann, Esq.
Edward F. Ruberry, Esq.
Bollinger, Ruberry & Garvey
500 West Madison, Suite 2300
Chicago, IL 60661
Steven J. Polansky, Esq. (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
200 Lake Drive East, Suite 300
Woodland Falls Corporate Park,
Cherry Hill, NJ 08002
Counsel for Appellant
Thomas D. Schneider, Esq.
Suite 1801
1515 Market Street
Philadelphia, PA 19102
Ronald F. Kidd, Sr., Esq. (Argued)
2070 Lott Avenue
Philadelphia, PA 19115
Counsel for Appellees
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
The District Court ordered Coregis Insurance Company to produce six
documents. On appeal Coregis alleges that the District Court erred by: (1) applying the
Pennsylvania work product doctrine rather than the federal standard to four of the
documents; (2) failing to apply the work product doctrine to the remaining two documents;

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1. Because we resolve this dispute on the federal work product doctrine issue, we do
not reach the attorney-client privilege issue.
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(3) concluding that none of the documents were protected by the work product doctrine;
and (4) holding that the Pennsylvania attorney-client privilege allowed the partial disclosure
of two documents. We have jurisdiction pursuant to the collateral order doctrine over
discovery orders compelling disclosure of material that may be protected by the work
product doctrine or attorney-client privilege. In Re Ford Motor Co., 110 F.3d 954, 964
(3d Cir. 1997). Although we generally review the decision to grant a motion to compel for
abuse of discretion, our review is plenary where the decision was based upon the
interpretation of a legal precept. Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir. 1998).
We will now reverse.1
The facts of the case are well known to the parties and we note only that this
is a dispute between an attorney and her malpractice insurer over the settlement of an
underlying malpractice claim. The insurer, Coregis, filed for a declaratory judgment to
define the scope of their coverage in the malpractice claim against the Appellee, The Law
Offices of Carole F. Kafrissen, P.C. Coregis sought to escape coverage liability based on
contractual provisions in the insurance policy and recoup the amount already paid to
Cynthia Clark, the malpractice claimant. Kafrissen counterclaimed, alleging breach of
contract and bad faith. As part of discovery for the bad faith counterclaim, Kafrissen
requested that Corgis provide the entire claims file it held on the underlying malpractice
claim. Coregis produced nearly all of the documents from this file, but refused to provide

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2. Section 4003.3 provides that:
[A] party may obtain discovery of any matter discoverable
under Rule 4003.1 even though prepared in anticipation of
litigation or trial by or for another party or by or for that other
party's representative, including his or her attorney, consultant,
surety, indemnitor, insurer or agent. The discovery shall not
include disclosure of the mental impressions of a party's
attorney or his or her conclusions, opinions, memoranda, notes
or summaries, legal research or legal theories. With respect to
the representative of a party other than the party's attorney,
discovery shall not include disclosure of his or her mental
impressions, conclusions or opinions respecting the value or
merit of a claim or defense or respecting strategy or tactics.
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a November 1998 memorandum prepared by a claims representative, and five other
documents referred to in that memorandum, arguing that the work product doctrine and the
attorney-client privilege protected these documents.
The District Court applied the Pennsylvania work product doctrine, codified
at PA. R. CIV. P. 4003.3.2 The Court found that the “privilege is not absolute, and may be
discoverable in situations where the legal opinion of an attorney is relevant in a civil
action.” Order of December 12, 2001, J.A. at 269-71. Although this statement is equally
true in the federal context, the Court went on to find that “[t]he information need only be
‘relevant', and the party seeking the materials need not show substantial hardship.” Id. The
District Court cited Pennsylvania authority for the proposition that Kafrissen did not need
to demonstrate substantial hardship. The District Court erred in its analysis.
In United Coal Co. v. Powell Construction Co., 839 F.2d 958, 966 (3d Cir.
1988), we held that “[u]nlike the attorney client privilege, the work product privilege is

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governed, even in diversity cases, by a uniform federal standard embodied in FED. R. CIV. P.
26(b)(3).” Under the federal work product doctrine, a party seeking discovery of
documents created in the anticipation of litigation must show they have “substantial need of
the materials in the preparation of the party's case.” FED. R. CIV. P. 26(b)(3). The parties
must also show they are “unable without undue hardship to obtain the substantial equivalent
of the materials by other means.” Id. Even if those requirements are met, the court will
still withhold documents that would disclose “mental impressions, conclusions, opinions,
or legal theories of an attorney or other representative of a party concerning the lawsuit.”
Id. Thus, Kafrissen must make a showing of substantial need and undue hardship before
these documents must be produced.
All six of the documents were submitted to us in camera. Upon examination,
it is apparent that they were created by Coregis or its representatives in anticipation of the
coverage litigation. The only question is whether Kafrissen's bad faith claim relates to the
documents, in other words, if the documents sought represent mental impressions, etc.
relevant to the accusations of bad faith in the underlying malpractice claim. Coregis urges
that there is a distinction between the release of documents related to settlement of the
underlying claim and documents related to the instant coverage action. We agree. The
documents before us were prepared in anticipation of litigation involving coverage and
should be distinguished from Coregis’ handling of the underlying malpractice claim.
The decision that a document is protected by the work product doctrine is not
a linear conclusion and is necessarily dependant on both the content of the document and

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3. Kafrissen also alleges that Coregis waived any privilege by attaching an affidavit
from counsel that purports to explain what happened during settlement. Kafrissen claims
that by relying on the ‘advice of counsel’ defense, Coregis has waived their work product
and attorney-client privileges. Kafrissen is mistaken that the affidavit places the ‘advice of
counsel' in issue. Based on our precedent, an affirmative step must be taken to put the
attorneys' mind in issue, mere relevance is not enough. Rhone-Poulenc Rorer, Inc. v. The
Home Indemnity Co., 32 F.3rd 851, 863 (3d Cir. 1994)(“Advice is not in issue merely
because it is relevant...advice of counsel is placed in issue where the client asserts a claim
or defense, and attempts to prove that claim or defense by disclosing or describing an
attorney client communication.”). Coregis has not pleaded this defense, nor has it placed
‘advice of counsel’ in issue merely by submitting the factual affidavit.
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the factual showing by the party seeking disclosure. Here, disclosure is inappropriate
because the documents anticipate coverage litigation and relate primarily to the mental
impressions and legal opinions on how to proceed with the coverage litigation. Because
these documents relate to the current litigation and not the underlying claim, Kafrissen
cannot demonstrate substantial need and the documents should be protected.3
For the foregoing reasons, we will reverse the order of the District Court
compelling production of these six documents.

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_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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