UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

VALLEY FORGE INSURANCE

COMPANY, 

 PLAINTIFF, 

 VS. 

HARTFORD IRON & METAL, INC.

AND ALAN B. GOLDBERG (DBA

HARTFORD METAL & IRON), 

 DEFENDANTS. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CAUSE NO. 1:14-CV-6-RLM-SLC

OPINION and ORDER 

 

 Plaintiff Valley Forge Insurance Company moved to seal certain 

documents that defendants Hartford Iron & Metal, Inc. and Alan Goldberg 

attached as exhibits to their response to Valley Forge’s motion for preliminary 

injunction as well as portions of Hartford Iron’s response brief and amended 

response brief. In its reply, Valley Forge also asks the court to seal the 

transcript of the preliminary injunction motion hearing and the exhibits from 

that hearing. Hartford Iron opposes the motion and points out that Valley 

Forge filed two sealed exhibits, related to its preliminary injunction motion 

reply, without the court’s permission. Valley Forge replied; the motion to seal is 

ripe for review.1 

 

1 Valley Forge claims the court wasn’t prepared to hear argument on the motion to seal 

at the preliminary injunction motion hearing. The court declined to hear argument at that time 

because the motion wasn’t yet ripe. 
-2- 

 Under the 2012 Settlement Agreement between the parties, Valley Forge 

agreed to defend and indemnify Hartford Iron against claims brought by the 

Indiana Department of Environmental Management and the United States 

Environmental Protection Agency. In Part II, Section A, this agreement 

appointed an attorney, “defense counsel,” whose anticipated tasks include 

“legal work to defend Hartford Iron against the EPA and IDEM claims, to 

handle negotiations with the agencies, to supervise the environmental 

consultant, and to represent Valley Forge’s recognized interests in controlling 

costs and obtaining agency approval of the most cost effective remediation 

alternative that protects Hartford Iron’s interests at the site.” Valley Forge 

argues that Hartford Iron disclosed to defense counsel privileged attorney-client 

communications that shouldn’t have been disclosed without Valley Forge’s 

consent.2 Most of the communications at issue discuss the remediation of the 

site and are between current defense counsel Jamie Dameron and employees of 

Valley Forge or employees of August Mack Environmental, Inc., Valley Forge’s 

environmental contractor performing the remediation. 

 This dispute causes two well established principles to collide – open 

court records and attorney-client confidences. The court has jurisdiction over 

this suit based on diversity jurisdiction, so the court applies state law to 

 

2 Valley Forge says Hartford Iron filed the same documents in a parallel state court 

action, and, upon motion by Valley Forge, the state court sealed the documents. As a result, 

Valley Forge says Hartford Iron is aware that it doesn’t consent to the public disclosure of the 

documents. 
-3- 

substantive issues and federal law to procedural issues. Stutzman v. CRST, 

Inc., 997 F.2d 291, 294 (7th Cir. 1993). Under Federal Rule of Evidence 501, in 

a diversity case in which state law supplies the rule of decision, the state’s 

substantive law of privilege governs as well. Armour Int’l Co. v. Worldwide 

Cosmetics, Inc., 689 F.2d 134, 135 (7th Cir. 1982); Netherlands Ins. Co. v. 

Nat’l Cas., 283 F.R.D. 412, 416 (C.D. Ill. 2012); Lauth Grp., Inc. v. Grasso, No. 

1:07-CV-0972-SEB-TAB, 2008 WL 926631, at *2 (S.D. Ind. Apr. 4, 2008). 

Accordingly, federal law controls the request to seal, and Indiana law 

determines the attorney-client privilege. 

 In general, court records, and especially the documents that influence a 

judicial decision, are open to the public. Baxter Int’l, Inc. v. Abbott Labs., 297 

F.3d 544, 545 (7th Cir. 2002). A court won’t seal a document unless it contains 

information that “legitimately may be kept from public inspection.” Id. at 546; 

see Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006) (“The 

political branches of government claim legitimacy by election, judges by reason. 

Any step that withdraws an element of the judicial process from public view 

makes the ensuing decision look more like fiat and requires rigorous 

justification.”). Conversely, the attorney-client privilege promotes secrecy. An 

attorney must maintain the confidences related to the representation of a client 

unless the client gives informed consent of the disclosure. IND. PROF’L COND. R. 

1.6. The attorney-client privilege encourages clients to “communicate fully and 

frankly with the lawyer even as to embarrassing or legally damaging subject 
-4- 

matter.” Canfield v. Sandock, 563 N.E.2d 526, 528-529 (Ind. 1990) (quoting

IND. PROF’L. COND. R. 1.6 cmt. 2). “To invoke attorney-client privilege, the 

invoking party must ‘establish by a preponderance of the evidence (i) the 

existence of an attorney-client relationship and (ii) that a confidential 

communication was involved.’” TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 

995 (Ind. 2014) (quoting Mayberry v. State, 670 N.E.2d 1262, 1266 (Ind. 1996)). 

More precisely, the attorney-client privilege only protects communications 

between an attorney and a client “in the course of an effort to obtain legal 

advice or aid, on the subject of the client’s rights or liabilities, from a 

professional legal advisor acting in his or her capacity as such.” Id. at 995-996. 

The scope of the privilege is narrow because it “may prevent the disclosure of 

relevant information,” and the party “asserting the privilege has the burden of 

establishing its applicability.” Lauth Grp., Inc. v. Grasso, No. 1:07-CV-0972-

SEB-TAB, 2008 WL 926631, at *2 (S.D. Ind. Apr. 4, 2008) (quoting Howard v. 

Dravet, 813 N.E.2d 1217, 1222 (Ind. Ct. App. 2004)). The court may seal 

documents or portions of the record that fall within “categories of bona fide 

long-term confidentiality,” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 

(7th Cir. 2002), and the attorney-client privilege is one such category. Drics v. 

Duffy, No. 1:14-CV-01192-SEB-MJD, 2014 WL 5324285, at *1 (S.D. Ind. Oct. 

16, 2014). “The claim of privilege cannot be a blanket claim; it ‘must be made 

and sustained on a question-by-question or document-by-document basis.’” 
-5- 

United States v. White, 950 F.2d 426, 430 (7th Cir. 1991); TP Orthodontics, 

Inc. v. Kesling, 15 N.E.3d 985, 994 (Ind. 2014). 

I. ATTORNEY-CLIENT RELATIONSHIP 

 To begin with, the parties disagree about whether the attorney-client 

privilege applies to the relationship between Valley Forge and defense counsel. 

Both parties point to the language of the 2012 Settlement Agreement to 

support their view of the relationship. Valley Forge claims defense counsel 

jointly represents Valley Forge and Hartford Iron because the agreement 

identifies defense counsel’s duties to include defending Hartford Iron and 

representing the interests of Valley Forge and delegates the control of the 

defense to Valley Forge. Hartford Iron claims defense counsel hasn’t ever 

represented Valley Forge, and defense counsel Jamie Dameron informed Valley 

Forge that she hadn’t been hired to represent Valley Forge or “on the basis of a 

joint representation.” The contract’s language doesn’t explicitly address the 

issue. 

 Valley Forge cites Cincinnati Insurance Co. v. Wills, 717 N.E.2d 151 (Ind. 

1999), and argues that under Indiana law, when an insurance company 

employs and pays for its insured’s defense counsel, such counsel has an 

attorney-client relationship with both the insured and the insurance company. 

The court agrees, although the Cincinnati Insurance Co. v. Wills holding isn’t 
-6- 

that simple.3 In the typical case in which an insurance company employs and 

pays for its insured’s defense counsel, be it an insurance company employee or 

an outside attorney, the Cincinnati Insurance Co. v. Wills court found “it 

unrealistic to ignore the client relationship with both” the insured and the 

insurer, and held that nothing prevents the joint representation as long as the 

clients’ interests align. Id. at 161. Valley Forge and Hartford Iron disagree 

about whether their interests align. Valley Forge says they share the common 

interest of minimizing Hartford Iron’s liability; Hartford Iron says their interests 

don’t align. At the preliminary injunction hearing, the court expressed 

skepticism, in light of this case, that the parties’ interests are aligned. So, 

ethically, joint representation by defense counsel at this time isn’t a good idea, 

but that doesn’t answer several related questions, such as whether defense 

counsel original represented both parties and their interests diverged at some 

point (and if so, the remedy) or if defense counsel at no point represented both 

parties. As the Cincinnati Insurance Co. v. Wills court observed, “If a conflict 

arises, it will have to be handled, and there are a variety of means to do that.” 

Id. If a conflict has arisen or always existed, the parties should address it in an 

appropriate motion that proposes the means by which they would like to 

address the issue. The court needn’t decide whether an attorney-client 

 

3 The Cincinnati Insurance Company v. Wills holding authorized attorneys employed by 

insurance companies to defend insureds against liability as long as the representation didn’t 

compromise the attorney’s ethical obligations and the relationship was disclosed. 717 N.E.2d 

151, 153 (Ind. 1999). The court also found a law-firm-like name used to describe the insurance 

company employed attorneys misleadingly suggested they were outside counsel and therefore 

was prohibited by Indiana Professional Conduct Rule 7.2. Id. 
-7- 

relationship existed to determine whether the privilege applied to the 

communications at issue because Valley Forge didn’t establish that the 

communications were confidential.4 

II. CONFIDENTIAL COMMUNICATIONS 

 Valley Forge contends that of the fifty-six documents Hartford Iron 

attached as exhibits to its response brief, twenty-eight contain attorney-client 

and work-product privileged communications and Hartford Iron’s response 

brief and amended response brief extensively discuss and divulge the contents 

of confidential and privileged communications. As the party asserting the 

privilege, Valley Forge bears the burden of establishing that the attorney-client 

privilege applies to the documents. Lauth Grp., Inc. v. Grasso, No. 1:07-CV0972-SEB-TAB, 2008 WL 926631, at *2 (S.D. Ind. Apr. 4, 2008). The attorneyclient privilege protects confidential communications between an attorney and 

a client, which are communications made “in the course of an effort to obtain 

legal advice or aid, on the subject of the client’s rights or liabilities, from a 

professional legal advisor acting in his or her capacity as such.” TP 

 

4 Valley Forge asserted two new arguments in its reply brief – the communications 

would be protected from third party discovery and the communications are protected under the 

common interest privilege. The court declines to address arguments that were not raised in the 

motion brief; to do so deprives the other party of the opportunity to be heard. United States v. 

Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006). Because the court doesn’t decide the attorneyclient relationship question, the court needn’t reach Hartford Iron’s argument that Ms. 

Dameron’s disclosure was permissible pursuant to Indiana Professional Conduct Rule 1.6(b)(5), 

which allows an attorney to reveal confidential client information to respond to allegations 

concerning the attorney’s representation of the client. 
-8- 

Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 995-996 (Ind. 2014). For each 

document, Valley Forge identifies the exhibit number, date, author, recipient, 

and type of communication. Valley Forge refers to the brief and amended brief 

in general. 

 The vast majority of the documents are correspondence that involved 

current defense counsel: 

Exhibits 11-25, 27, 33-37, 40, and 56 communications to or from defense 

counsel Jamie Dameron 

Exhibit 39 letter from Valley Forge’s counsel to an 

attorney that Valley Forge would like 

to hire to succeed Ms. Dameron as 

defense counsel 

Exhibit 42 letter from former defense counsel to a 

representative of Hartford Iron 

The list reveals correspondence that, on its face, involves an attorney and a 

client, but to be protected by the attorney-client privilege, a communication 

between an attorney and a client must also involve the provision of legal 

services. TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 995-996 (Ind. 2014). 

Valley Forge doesn’t specify how the correspondence to and from defense 

counsel involved his or her role as defense counsel. The document list therefore 

doesn’t establish that a confidential communication was involved in any of the 

conversations. 

 Three documents on Valley Forge’s list are distinguishable from the 

defense counsel correspondence: 
-9- 

Exhibit 41 Litigation Management Guidelines of 

CNA (a/k/a Valley Forge) 

Exhibit 50 emails that began between a 

representative of Hartford Iron, a 

representative of August Mack, and 

Hartford Iron’s counsel and morphed 

into an email chain that included 

representatives from Valley Forge, 

August Mack, and Hartford Iron and 

counsel for Valley Forge and Hartford 

Iron 

Exhibit 55 declaration of defense counsel Ms. 

Dameron 

Valley Forge didn’t specify whether the attorney-client or work-product privilege 

applies to Exhibit 41 or the reason the privilege applies to the litigation 

manual. Exhibit 50 began as an internal Hartford Iron discussion, and 

eventually an attorney for Valley Forge was copied on the correspondence. The 

attorney didn’t participate in the conversation. Valley Forge doesn’t explain 

how simply copying an attorney on an email chain creates a confidential 

communication. Valley Forge also doesn’t explain how Exhibit 55, a declaration 

of counsel, which isn’t a communication with a client, is privileged. Valley 

Forge didn’t establish that these exhibits contain confidential communications. 

 Finally, Valley Forge claims Hartford Iron’s response brief and amended 

response brief discuss and divulge confidential and privileged communications 

and the offending portions of the briefs should be sealed. But Valley Forge 

doesn’t identify the lines, paragraphs, or even sections of the brief that contain 
-10- 

this information, let alone the specific reasons the unidentified information is 

protected. Consequently, Valley Forge didn’t show that either brief reveals 

confidential communications. 

 In sum, Valley Forge broadly and generally asserts that twenty-eight 

documents and some unidentified portions of the response briefs are protected 

by the attorney-client privilege. The party invoking the attorney-client privilege 

must establish that each document involved a confidential communication (as 

well as the existence of an attorney-client relationship), TP Orthodontics, Inc. v. 

Kesling, 15 N.E.3d 985, 995 (Ind. 2014), and Valley Forge hasn’t done so. 

III. PRELIMINARY INJUNCTION MOTION HEARING

 At the preliminary injunction motion hearing, Valley Forge offered five 

exhibits that contained email conversations between defense counsel and a 

representative of Valley Forge and one exhibit that contained several emails 

and letters from Valley Forge’s counsel to defense counsel. Hartford Iron offered 

a copy of Valley Forge’s Federal Rule of Civil Procedure 26(a) disclosures as its 

only exhibit. The exhibits were admitted, and a transcript of the hearing was 

ordered and prepared. In its reply, Valley Forge asks the court to seal the 

transcript of the preliminary injunction motion hearing and the exhibits 

admitted into evidence at the hearing. 

 Valley Forge’s belated request sweeps too broadly. To begin with, Valley 

Forge didn’t ask the court to seal the courtroom during the hearing or ask the 
-11- 

court to seal the exhibits at the time they were presented in open court. 

Further, Valley Forge moved the court to seal the transcript and the exhibits in 

its reply brief, not its initial motion to seal. See United States v. Alhalabi, 443 

F.3d 605, 611 (7th Cir. 2006) (argument asserted for the first time in reply brief 

is waived). Finally, as discussed previously, the attorney-client privilege must 

be invoked on a document-by-document basis, but Valley Forge doesn’t specify 

why each exhibit from the hearing should be sealed or identify the lines of the 

transcript and the reason why it believes the lines should be sealed. United 

States v. White, 950 F.2d 426, 430 (7th Cir. 1991); TP Orthodontics, Inc. v. 

Kesling, 15 N.E.3d 985, 994 (Ind. 2014). 

 Hartford Iron argues that the motion to seal is moot because the relevant 

information in the documents at issue was publicly disclosed, through 

testimony and as exhibits, during the preliminary injunction motion hearing. 

This argument, too, sweeps too broadly. Hartford Iron doesn’t point to the lines 

of the hearing transcript that discussed its twenty-eight response brief exhibits, 

and the court declines to comb the record for similarities. See Estate of 

Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005) (The court “will not scour 

a record to locate evidence supporting a party’s legal argument.”). Likewise, the 

correspondence in the hearing exhibits isn’t the exact same correspondence 

found in the response brief exhibits. For example, the August 14, 2014 email 

from Ms. Coyle to Ms. Dameron was an exhibit at the preliminary injunction 

motion hearing, while the August 14, 2014 letter from Ms. Dameron to Ms. 
-12- 

Coyle was an exhibit to the response brief. Perhaps the same correspondence 

ended up in the record at the preliminary injunction motion hearing, but the 

court declines to delve through the record on Hartford Iron’s behalf to find out. 

See Fagocki v. Algonquin/Lake-In-The-Hills Fire Prot. Dist., 496 F.3d 623, 629 

(7th Cir. 2007) (“It is the parties’ duty to package, present, and support their 

arguments.”). 

IV. CONFIDENTIALITY IN GENERAL

 Hartford Iron unhelpfully argues that Valley Forge breached the 

confidentiality provision of the 2012 Settlement Agreement by publicly 

disclosing the agreement in the record of this case. Because Valley Forge hasn’t 

tried to seal the agreement, Hartford Iron contends Valley Forge’s 

confidentiality protest is untimely and waived. Valley Forge asserts the 2012 

Settlement Agreement allows the agreement to be disclosed in any proceeding 

in which the agreement’s terms are at issue or to enforce the agreement, so it 

hasn’t violated the agreement. The court agrees. Part II, Section M of the 

Settlement Agreement permitted Valley Forge to disclose the agreement when it 

filed this suit against Hartford Iron asserting claims of breach of the agreement 

and seeking declaratory judgment to enforce portions of the agreement. The 

point is, however, irrelevant; the agreement’s confidentiality provision is 

unrelated to the attorney-client privilege at issue. 
-13- 

V. DOCUMENTS 56 AND 57

 Hartford Iron emphasizes that Valley Forge filed two exhibits under seal 

without the court’s authorization or a supporting motion. Under Local Rule 5-

3(a), the clerk “may not maintain a filing under seal unless authorized to do so 

by statute, court rule, or court order.” The two sealed documents are connected 

to Valley Forge’s reply to the preliminary injunction motion. Valley Forge didn’t 

file a motion to seal the documents, didn’t offer a reason for the documents 

being filed under seal in the preliminary injunction reply brief, and doesn’t 

address the issue in its motion to seal reply brief. Without a statute, court rule, 

or court order to support the sealing of the documents, the filings cannot be 

maintained under seal. 

VI. CONCLUSION 

 For the foregoing reasons, the court DENIES plaintiff Valley Forge’s 

Insurance Company’s motion to seal certain documents (Doc. No. 52) and 

ORDERS the clerk to remove the seal from the documents attached to docket 

numbers 56 and 57. 

 SO ORDERED. 

 ENTERED: May 11, 2015 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court