and i'd also like to apologize in advance for my headset my microphone is not working may it please the court my name is roy don and i represent st paul fire marine insurance company that also be referred to as the travelers today and in the briefing travers appeals from the trial court's aug th order and those leading up to it which ordered travelers to produce numerous withheld documents by travelers on the basis of attorney client work product and ensure insured privilege the court ordered the documents produced without redaction and without conducting and cameron review the trial court also found travelers in contempt and imposed sanctions the trial court entered excuse me the trial court erred as travelers claims of privilege were supported by detailed numerous previous log they total five hundred dollars and some o pages declarations of claims handlers and days and days of deposition testimony of the claims wrist representatives responsible for the case nothing in the record suggests that any of travelers assertions were incorrect or not in good faith in essence the court ordered travelers to produce its pre college litigation playbook as well as the defense communication of its insured vault  because in the court's view their ordinary insurance records a conclusion as i will point out is not supported by the record our supreme court has repeatedly recognize as to issues of privilege in camera view is the accepted method to real risk group resolve the issue again our court did not review the documents and cameron and rather taking the end around that these are ordinary business records therefore the truck court at the very least was obligated to evaluate the withheld documents in can review before ordering their production instead he proceeded on the assumption that nothing in the withheld documents including legal advice and attorney work product could possibly be could not be privileged or entitled to any protections or review of the record demonstrates travelers claims of privilege are appropriate and the trial court's decision should be overturned on that basis alternatively the matter should be remanded to the trial court with instructions to conduct an encounter review and issue a decision accordingly were over the truck were also erred in finding travers in contempt and opposing sanctions as true travelers privilege assertions whether they're right or wrong they were made in good faith and amply supported by the record what's at issue he's reading the briefs it's confusing so where we are is let's start with what's not in dispute we have communications of travelers with its coverage counsel as well as with the king or a firm who represents a vault this is conceded to by cat in its caterpillar excuse me and it's brief caterpillar also concedes that nothing in the nd privilege log which that it we were did not need to produce the documents those are the documents between the agile era firm and travelers the tom way firm and travelers the cast of mueller firm and travelers ok thank you caterpillar sir caterpillar also agrees that in can review can be done of the one hundred and seventy one documents that were sent by vault or its counselor to travelers and together bassett and willis who are the agent  g volts primary insurer frankly there's really no reason if the court needs to do it in camera review those documents it shouldn't do and in camera review of all of the documents at issue however confusion exists over what is at issue in the courts aug th order the order states this matter comes on for hearing on caterpillars motion toward sanctions against travelers the court finds the claims and reinsurance documents addressed in caterpillars motion are ordinary business documents and are discoverable and are and therefore the court orders a traverse separate to use them in thirty days and reinsurance doctorates addressed in caterpillars motion without redaction a dispute subsequently arose whether the documents addressed in caterpillars motion only refers to certain portions of the withheld documents or all of the well withheld documents as a result trailer subsequent argued to the trial court in its motion for clarification that the order was limited to certain documents in the claim file the court denied trailer's motion for clarification as a time of the contempt finding there go there is a question of whether all of the withheld documents need to be produced on redacted without in camera view travelers believes that no production is required to help documents because we've met our burden we have submitted five hundred and ninety some odd pages of logs document in the privilege we have submitted declarations describing and supporting the privileges and we have submitted our representatives to days of testimony where the privileges could be probed therefore we are asking this court to reverse the trial court and find that the privileges the documents are privileged and do not be need to be produced aso discussed later as the alternative basis for that conclusion is nothing in the documents that travel caterpillar seeking will lead to admissible evidence in this case alternatively no production of any documents should require be required post the filing date of coverage that a geisha this is an easy line we filed our coverage lawsuit on may th two thousand and fourteen caterpillar filed its lawsuit on june rd two thousand and fourteen and they've already indicated they get that the documents created in the coverage litigation by attorneys are communications of trailers are privileged  the court does not agree with travelers that we've met our burden then we're asking the court to order the trial court to conduct an in cameron inspection of these documents because as i discussed there's nothing ordinary about this claim file this case involves caterpillars attempts and it's the the attempts of its axis carriers to shift a nine figure exposure for a products liability case involving a fire caused by its engine to volt and its carrier travelers based on the premise that the work of the employee that volt provided a caterpillar caused a catastrophic failure when in fact caterpillar has suffered other catastrophic failures of this very same engine certain undisputed key facts demonstrate there was nothing ordinary about this claim filed the lawsuit against caterpillar was filed in january two thousand and ten in its investigation of the allegations against it caterpillars developed a list of all the employees involved in the manufacture of the engine ross white the borrowed servant of the vault is on the list nevertheless the lawsuit goes on for three years plaintiffs are presuming products liability however on the eve of trial well the trial was ordered april two thousand and fourteen and march two thousand and thirteen the plaintiffs for less than clear reasons  amend their product liability case to include just a negligence case against ross white the line worker in the caterpillar process they don't sue volte at that time caterpillar consult with coverage council caterpillars consultation with coverage council is logged as attorney client as well as work product that's in april of two thousand and thirteen at the end of april two thousand caterpillar did not seek coverage as an additional insured from travellers until may of two thousand and thirteen that's three and a half years after the original lawsuit was filed and they do knew about mr white even though it was not sued volte asked its primary care ai g to get coverage costs are to get defense counsel involved in september of two thousand and thirteen travelers opened its claim file in october and retained coverage counsel in mid november and a retained alabama counsel to investigate the bender case in mid november that council intervened in the bender action for the limited purposes of monitoring it and participating in the eventual mediation voltz counsel the boiling f in november at the end of november two thousand and thirteen this demonstrates that by mid to late november two thousand and thirteen all the parties in this case had lawyers up fold had counsel travelers had counsel caterpillar had counsel there after caterpillar finally got around to suing vault in february of two thousand and fourteen the bender case the underlying case was settled for forty six million dollars in april then as i mentioned before travelers sues caterpillar in may over coverage of the bender settlement then caterpillar sues volt travelers and peoria this court in june and july travelers assumes the defense of volt from a i g these facts demonstrate without question that caterpillars claims that all of the travelers communications it's resit from the time of its reservation of rights at the end of the end of november until the filing of the carrier caterpillar coverage litigation are not ordinary business documents as the trial court everybody was ready for litigation they had the lawyers doing the work and that's what the tell documents address so how did we get here with the judge well the problem has been caterpillars inconsistency was what it's being sought and i apologize i have to look at my notes because this is confusing but in december two thousand and seventeen motion to compel it include a request for votes withheld documents ok those are the documents we claim are insured insured privilege because caterpillar at their hearing caterpillar argued do we want things about that are unique to the defense they are providing to volt it said no so this is this covers the entire universe of the documents that travelers can considers and held back based on insurer insured privilege so the universe just to put it back in perspective the entire universe of documents we're talking about with some exceptions are from the coverage litigation up until october or back until october two thousand and thirteen that's what the court has ordered to be produced based on the fact their business documents which i just estab so with regard to the inconsistency he's caused by caterpillar there was the issue of whether or not all documents with before coverage litigation were privileged caterpiller stated do we want things after this litigation was commenced it said no so our position is given that position anything on the privilege logs in the withheld documents  acknowledge are not fair game in fact our attorney client and our work product and let me stress something because i don't think i'm going to get to to it my argument we have produced twenty five thousand pages of documents what we haven't produced the withheld documents are a small subset of of those documents approximately how many are we your honor we tried to figure that out and between the redacted documents and completely withheld documents we could not figure that that number out because and it's a lot your honor because again we're talking about documents generated by votes lawyers documents generated by our lawyers which we had to we had covered lawyers we had lawyers monitoring bender case and then we have all our communications with those individuals as well as our internal communications discussing this potential nine million and nine figure exposure so in addition to whether or not the documents post litigation are at issue and potentially the biggest inconsistency is created by cat caterpillar with course and filed a motion contending that travelers had failed to comply with the march st order and a may th order because some of the documents that we did produce were redacted for the very same reasons that the court filing argues that the court had already rejected travelers assertion of privilege that's just not can truth that's just not true and the record proves that i'm out of time your honor i just want to if you' indulge me quickly address one last point and that is why are we doing all this and caterpillar says we're doing it to obtain facts on the notice issue which in illinois prejudice is presumed recall we have three and a half years here moreover if they want to look at prejudice the facts of prejudice are concerned the underlying file and any delays in notifying us of that that may cause prejudice again nothing in our litigation or our coverage files going to talk about that they also want to talk about your discovery on your work which is a coverage provision that numerous illinois has said that the insured controls the facts that deals with coverage and waste management is a really important case here because it involves the court's proclamation the discovery that we're focused on in this case on this appeal is cadel the pill or is seeking discovery to help prove its claims against travelers it's insured or under the full program for claims including bad faith we're trying to find out if the basis for their position on coverage and mr dunn referred to the forty six million dollars settlement of the underlying ship fire case in alabama mr gary mann testified that travelers contribute three million dollars to that of their twenty five million dollars limit on behalf of caterpillar so in this discovery where in part trying to understand the documents from basically his st involved with the caterpillar claim in october of two thousand and thirteen by the withholding the document entirely or redacting it your honor asked how many how many doctors were talking job was to investigate the claims against caterpillar to assess liability against caterpillar and that bender case an alabama and to allies the insurance coverage of the travelers policy travelers response to all of this has been to fight and fight and switch positions and fight and switch positions they did they have to leave it back to all the documents one look at me should not look any further than judge  statements at the march st two thousand and eighteen hearing he actually took a document that this record number one is the document at the sixteen dash one hundred and forty seven it was a good one of the hearing and it's a completely to compel claims and reassurance documents the claims documents there was no showing of privilege whatsoever and with respect to the reinsurance documents travers didn't even argue that those documents privileged that here go to the next hearing trial was made a motion for reconsideration about that war what did they do they argued reconsideration of the reinsurance part have heard the argument before that there they were arguing privileged in that st motion one need only look at the transcript and at their briefs see how much they are doing privileged complete nine pages were devoted to privilege by the troublous lawyers it was before mr dunn's time in this case and then there was another attorney from a different firm where they covered by the logs a lot at that point had no choose and no friends she's been involved in as attorney and that doesn't you know for the reason that shit that they contain her impressions of dollars are such a privilege is that what you're sequencer there basically does a couple of things the st is it indicates that the judge had worked very diligently had four hearings and fifteen briefs that he consider in addition the significance is they are making a new arguments by the time the th argument is made including argument that never made before and one of the arguments that we made in the th round and supposed to be made for claims documents with successive changes in their argument correct and in the day of her change which were the privileged documents i don't know that they've ever been clear enough for me to tell the scope of the published documents because the beginning there were there were gotos in from so i don't know who they were starting it over and then as the logs changed they they've made some productions but the productions are heavily redacted so it's hard for me to tell exactly what at the core group of documents have been issued the entire time and for caterpillar they did so all through two thousand and thirteen in till two thousand and fourteen when caterpillar filed a claim against vault and they created a separate cl file for vault now that separate claim file is not we're not seeking that we're seeking and this is coverage the claim filed that it off katz documents even though it may have had some vault documents in it then it's really important to alleges no coverage for a vault on the trapper's policy nothing could be more basic than this complete adversity between parties there is no privilege there's complete verse because they claim there is no travelers and the vote documents that privilege is only for a certain type of communication and it has several of his none of which are met the for example you must prove and show if you're if you're arguing that privilege that the dominant purpose of that communication is to trip transmit information to an attorney for the prosecution or protection of the in short they should say protection of the short travels can't prove any of those things they were very claims darkness the illinois regulations provide like to do is cloak all of the stockings and what it would do is think about if you make a claim to your insurance company and they say at the end of their investigation well i pay you x you say why what's the basis it was the policy isn't a factual issue what's the basis and they say we're not telling things all work product that's essentially what they're saying here between the documents that are submitted all through two thousand and thirteen investigation mr mann conducting up to two thousand and fourteen we go to the summit meeting in alabama they're protecting all of that information that's all political for practice litigation it's also prior to a claims of time nation by travelers there's case law in illinois including kind of continental versus mars for the proposition that before a claim determination is made that can be no work product and that's especially this this close what is what the court is trying to prevent with as a party whose records as a party you has a bad state by the way we're going to be able to demonstrate bad faith if i look at what the claims handler did non attorney claims handler is discoverable but travis won't give it up not after four rounds of racing or so in the trial for when they have lost the privilege issue and they want to read you over that's not the purpose when a camera view and wesco case that we cite cautions against having the trial or you agree that there are there is the necessary on certain occasions for in camera review correct if you and i would suggest that there are there are two things that would warrant that one is fact is to look  that traverses taken inconsistent positions throughout the discovery process we have consistently maintained that certain documents are privileged and our work product the reason there are six privilege logs is because we have produced in different batches different information and so each of the privilege logs deals with different information our position has been consistent that it's privileged and we've logged it we showed the recipients when they question the suspension civil august we amended them and there was no ruling in march that we had to produce the documents and thus no need for any request for in camera when it became clear after we've produced two different sets of new documents that the court was going to reverse course based on the incorrect assumption of ordinary the documents reproduced in the ordinary course we again reiterated it can request which is made in numerous br where we point out in kit if you have questions judge you should hear but if you have questions in camera is what you do further as to mister reed's comment about not having a common interest w his client's claim and he's got coverage lawyers and got defense lawyers is that volts work caused the fact that function of the diesel motor travelers and volt gain a benefit from the efforts of volts counsel in determining whether or not that claim is legitimate that volt started that process in september therefore we logged we requested and then logged all the communication from vaults defense council there is no doubt there is a common interest and is recognised by the supreme court in waste management we can have a common interest but a rd party like caterpillar isn't entitled to the documents and that's what we're fighting about here they know they're not entitled to the documents they convince the judge that these are ordinary course documents and the facts don't absolutely not that's what we're fighting about still we even if we don't have a determination as to caterpillar we reserve rights as to caterpillar and that's what the coverage litigation is about whether or not caterpillars liability arises out of bolts work as to vault we're defending it the case law is if you have a duty to defend it provide a defense there's a common interest we're defending vault moreover we said default if somehow you're responsible for the property damage occasioned by caterpillar we're going to pay for it except for that small portion that's volts work that's our policy language but no your honor we have not denied coverage of all in fact we're providing them a defense and the coverage issues are still undecided they're being litigated in the underlying case so yes we have a common interest with both absolutely effector paying for their lawyers we have that that's a job that's a different thing right the warriors and whether or not there's coverage was you know different things that defines an identity and as waste management points we can have a common interest and if in fact we lose to our common interest caterpillar and we it changes and there's a fight about coverage well then we become adversaries but that doesn't change the common interest we have in proving that caterpillars liability did not arise out of votes work if we prove that a vote proves that they don't have an obligation to caterpillar and we don't have a coverage obligation to caterpillar because our coverage obligation to caterpillar they're insured only if their liability arises from volts work and your volt denies that their liability arises from caterpillars work in effect relies on its contract and you'll hear about more of that from mr o'donnell in a bit but their contract says caterpillars responsible for training and supervising these people follow god's earth could cad could vote be responsible for mr white's work take your honors i appreciate your attention thank you mr dunne we thank both of you for your arguments this afternoon and will take the matter under