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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Plaintiff Prosight-- Syndicate 1110 At Lloyd’s (the “Plaintiff”) filed suit against 

American Builders and Developers LLC (“ABD”) seeking a declaratory judgment that it 

is not liable to indemnify ABD for any damages awarded pursuant to Maria Virginia 

Huizache and Florenciano Axinicuilteco’s (the “Claimants”) lawsuit.

1 The Claimants filed 

this Motion to Compel Production of Attorney-Client Communications (the “Motion”), 

arguing that the Plaintiff’s deposition testimony has opened the door to discovery of the 

Plaintiff’s attorney-client communications. (Doc. 193) The Motion was fully briefed on 

August 15, 2019, and oral argument was requested. (Docs. 194, 196) Because it would not 

assist in resolution of the instant issues, the Court finds the pending motion is suitable for 

decision without oral argument. See LRCiv. 7.2(f); Fed. R. Civ. P. 78(b); Partridge v. 

Reich, 141 F.3d 920, 926 (9th Cir. 1998). The Court’s ruling is as follows.

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In January 2016, an employee of a subcontractor was killed while working at the 

location of ABD’s construction project. The Claimants, as the decedent’s parents, brought 

a wrongful death action against ABD, among others, in Arizona state court. The Claimants 

stepped into the shoes of ABD to defend this case.

Prosight-- Syndicate 1110 At Lloyd’s,

 

Plaintiff, 

vs. 

American Builders and Developers 

LLC,

Defendant. 

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No. CV-17-04662-PHX-SPL

ORDER
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In the Motion, the Claimants seek an order from the Court compelling the Plaintiff 

to produce discovery materials that qualify as attorney-client communications between the 

Plaintiff and Plaintiff’s counsel. The Claimants argue that a representative of the Plaintiff 

stated in a deposition that the Plaintiff relied on the advice of counsel when denying ABD’s 

claim for coverage. (Doc. 193 at 5) The Claimants primarily rely on the holding of State 

Farm v. Lee to argue that this admission waived the Plaintiff’s attorney-client privilege for

communications related to the advice of counsel on the topic of the Plaintiff’s denial of 

ABD’s claim. (Doc. 193 at 5–8) State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52 (2000). 

In Lee, the Supreme Court of Arizona crafted the legal standard for deciding when 

a party waives its attorney-client privilege for communications between client and counsel. 

The Lee plaintiff was an insurance company who stated that it relied on the advice of 

counsel and evaluated the law in defending its good faith decision to deny the defending 

parties’ claims. Lee, 199 Ariz. at 57–58. The Supreme Court of Arizona held that attorneyclient privilege is waived when a party “has asserted some claim or defense, such as the 

reasonableness of its evaluation of the law, which necessarily includes the information 

received from counsel.” Id. at 62. Privilege is waived because “the party claiming the

privilege has interjected the issue of advice of counsel into the litigation to the extent that 

recognition of the privilege would deny the opposing party access to proof without which 

it would be impossible for the factfinder to fairly determine the very issue raised by that 

party.” Id. The Supreme Court of Arizona stated that a party waives its attorney-client 

privilege in this instance when “the party asserting the privilege claims its conduct was 

proper and permitted by law and based in whole or in part on its evaluation of the state of 

the law.” Id. However, simply conferring with counsel or “trading information for advice” 

is not enough to waive attorney-client privilege. Id. at 66. 

The Court finds that the Plaintiff’s statements regarding reliance on the advice of 

counsel do not rise to the level of waiving its attorney-client privilege. The statements 

highlighted by the Claimants in the Deposition of Paul Kush reflect that the Plaintiff 

“reviewed the facts that had been provided to [it] thus far, . . . reviewed the complaint, and 
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[it] sought the advice of counsel as well,” and “[it relied] on all of the facts that had been 

provided to [it], and further, on advice of [its] counsel.” (Doc. 193 at 4) The Court finds 

that the Plaintiff’s statements clearly demonstrate the type of conferral between client and 

counsel that is explicitly excluded from Lee’s holding. The Plaintiff is not arguing that it 

denied ABD’s claim because counsel advised it to, nor does the Plaintiff advance any 

arguments regarding its interpretation of the law as a defense. Furthermore, the Lee court 

stated that simply asserting a good faith defense is not enough to waive attorney-client 

privilege. Id. at 57 (stating “a mere denial of a cause of action is not the kind of act that 

waives the privilege” and “[a]n insurer’s denial of an insured’s allegations of bad faith, and 

its assertion that it acted in good faith . . ., without more, do not . . . give rise to an implied 

waiver.”). Thus, the Court finds that the Claimants have failed to demonstrate that the 

Plaintiff has waived its attorney-client privilege. Accordingly, 

IT IS ORDERED that Claimants’ Motion to Compel Production of Attorney-Client 

Communications (Doc. 193) is denied.

Dated this 29th day of October, 2019.

Honorable Steven P. Logan

United States District Judge