Doc. # DC-9933406 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

STEPTOE & JOHNSON LLP

201 East Washington Street, Suite 1600 

Phoenix, Arizona 85004-2382 

Telephone: (602) 257-5200 

Facsimile: (602) 257-5299 

Timothy M. Strong (021345) 

tstrong@steptoe.com 

Bennett Evan Cooper (010819) 

bcooper@steptoe.com 

Attorneys for Defendant National Union 

Fire Insurance Company of Pittsburgh, Pa. 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Apollo Education Group, Inc., an Arizona 

corporation, f/k/a Apollo Group, Inc., 

 Plaintiff, 

 vs. 

National Union Fire Ins. Co. of Pittsburgh, 

Pa., a Pennsylvania corporation, 

 Defendant. 

Case No.: 2:15-cv-01948-SPL

JOINT MOTION FOR DISCOVERY 

DISPUTE RESOLUTION 

(Assigned to Honorable 

 Steven P. Logan) 

The parties submit this joint motion, in which National Union (“NU”) asks the 

Court to compel production of attorney-client communications between Apollo and its 

outside counsel Morgan Lewis & Bockius addressing the merits and settlement of the 

underlying securities case. NU’s position is that because Apollo is presenting its 

attorney, Joseph Floren, as an opinion witness, Apollo waives the attorney-client 

privilege. Apollo responds that Floren is a critical fact witness who, as lead defense 

counsel, evaluated the reasonableness of the settlement and conveyed this information to 

NU; calling him to testify to these facts does not render him an expert witness or waive 

the attorney-client privilege. Apollo also responds that it voluntarily waived work 

product privilege so that NU already has access to the documents and testimony 

reflecting Floren’s analysis of the underlying litigation and settlement. 

I. NATIONAL UNION’S STATEMENT OF DISPUTE 

Floren is an attorney who represented Apollo in the underlying securities action. 

Apollo identified Floren as a fact witness. (Ex. A.) Apollo never identified Floren as an 

Case 2:15-cv-01948-SPL Document 73 Filed 02/10/17 Page 1 of 6
 - 2 - 

 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

expert and disclosed no report as required by Rule 26(a)(2)(B); the deadline to disclose 

experts passed on August 1, 2016. (Doc. 35.) Floren cannot offer “lay” opinion 

testimony because such opinions would be based on specialized knowledge. Fed. R. 

Evid. 701. Moreover, during Floren’s deposition, NU’s counsel stated NU’s 

understanding that Apollo was not offering Floren as an expert witness; Apollo did not 

object or attempt to correct that understanding. (Ex. B, Floren Dep. 198:14-199:1.) 

In the meet-and-confer exchanges following Apollo’s production of its privilege 

log under the Court’s recent Order (Doc. 70), Apollo stated that it seeks to present 

Floren’s opinions on the underlying action’s merits and the settlement’s reasonableness. 

NU asked whether Apollo intends to limit Floren’s testimony to non-mediationprivileged statements expressed to NU during the underlying action. Apollo said no, and 

explained its belief that Floren’s opinions and the bases for them are relevant and will be 

offered whether or not he articulated all of them to NU in non-mediation-privileged 

communications. In other words, Apollo intends to offer Floren as an expert. NU will 

soon file a motion in limine asking the Court to preclude such opinion testimony, which 

should be barred under the Court’s case-management orders for failure to meet Rule 

26(a)(2)(B)’s disclosure requirements. 

As it stands now, Apollo intends to offer such opinions, and NU must be allowed 

to see all documents addressing the subjects of those opinions. Using an attorney as an 

opinion witness (including as an expert) on a topic waives the attorney-client privilege 

as to the topic. See, e.g., 1 Edna Selan Epstein, The Attorney-Client Privilege and the 

Work-Product Doctrine 572 (ABA 5th ed. 2007) (“When an attorney is called as an 

expert or, for that matter, even when a lawyer is called as a fact witness under certain 

circumstances, any privilege that might otherwise attach to the communications between 

the party calling that attorney ... and the attorney is deemed placed into issue and 

waived.”); Dion v. Nationwide Mut. Ins. Co., 185 F.R.D. 288, 295-96 (D. Mont. 1998) 

(party waived privilege by naming attorney as expert witness). Accordingly, NU asks 

the Court to grant its previously unresolved request for the production of all documents 

Case 2:15-cv-01948-SPL Document 73 Filed 02/10/17 Page 2 of 6
 - 3 - 

 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

relating to Apollo’s counsel’s analysis of the merits of the underlying action and 

settlement. (Doc. 62 at 2:4-6, 12-14, 25-28; Doc. 72 at 48:5-19, 56:22-57:8 (Apollo’s 

counsel), 53:7-13, 59:18-60:7 (NU’s counsel).) Attached is a list of documents from 

Apollo’s privilege/redaction logs that NU believes must be produced. (Ex. C.) 

II. APOLLO’S STATEMENT OF DISPUTE 

As Apollo’s lead defense counsel in the underlying securities litigation, and its 

primary contact with NU throughout the litigation, Joe Floren was a participant in the 

events at issue and thus a fact witness – and a critical one. Indeed, NU itself listed 

Floren as a fact witness in its initial disclosures. (Ex. D.) 

The central issue is this case is whether NU breached its obligations to Apollo by 

unreasonably refusing to consent to Apollo’s settlement of the securities litigation. It is 

extremely relevant to this issue that Apollo’s experienced lead defense counsel – who 

NU has acknowledged was highly competent and defended the case well – concluded 

that the settlement was reasonable given the risks faced by Apollo, and that NU knew 

this. Floren will testify to those important facts. That Floren’s testimony involves his 

judgment as an experienced securities lawyer does not convert it to “expert” testimony. 

Indeed, NU’s outside counsel and claims handler similarly testified in depositions as to 

their views of the settlement based on their experience, and NU did not designate them 

as experts. Since NU’s privilege waiver argument is based entirely on the incorrect 

premise that Floren is an expert witness, that argument must be rejected. 

Moreover, while a party’s need for documents is not enough to override the 

attorney-client privilege, NU has not even shown such a need. It seeks documents 

reflecting Floren’s “analysis of the merits of the underlying action and settlement,” but 

Apollo voluntarily has waived the work product privilege and has produced such 

documents, as well as permitted Floren’s deposition testimony on these subjects. NU 

thus has ample information about Floren’s analysis to use on cross-examination if it so 

wishes. Under these circumstances, NU has not even come close to justifying its request 

for discovery of Apollo’s attorney-client privileged communications. 

Case 2:15-cv-01948-SPL Document 73 Filed 02/10/17 Page 3 of 6
 - 4 - 

 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

DATED this 10th day of February, 2017. 

STEPTOE & JOHNSON LLP

By: /s/ Timothy M. Strong 

Timothy M. Strong 

Bennett Evan Cooper 

Erin E. Bradham 

201 East Washington Street, Suite 1600 

Phoenix, Arizona 85004-2382 

Attorneys for Defendant 

REED SMITH LLP

By: /s/ Mark S. Hersh (with permission) 

Mark S. Hersh 

Maria T. Pellegrini 

10 South Wacker Drive, 40th Floor 

Chicago, IL 60606-7507 

Attorneys for Plaintiff 

Case 2:15-cv-01948-SPL Document 73 Filed 02/10/17 Page 4 of 6
 - 5 - 

 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

LOCAL RULE 7.2(j) CERTIFICATION

Pursuant to Local Rule 7.2(j), the parties certify they have complied with the 

Rule, and counsel for Plaintiff and Defendants certify that they reasonably and in good 

faith conferred in an effort to resolve the matter set forth in this Motion. After personal 

consultation and sincere efforts to do so, counsel have been unable to satisfactorily 

resolve the matter. 

REED SMITH LLP 

By:/s/ Mark S. Hersh (with permission) 

Mark S. Hersh 

Maria T. Pellegrini 

10 South Wacker Drive, 40th Floor 

Chicago, IL 60606-7507 

Attorneys for Plaintiff 

STEPTOE & JOHNSON LLP

By: /s/ Timothy M. Strong 

Timothy M. Strong 

Bennett Evan Cooper 

Erin E. Bradham 

201 East Washington Street, Suite 1600 

Phoenix, Arizona 85004-2382 

Attorneys for Defendant 

Case 2:15-cv-01948-SPL Document 73 Filed 02/10/17 Page 5 of 6
 - 6 - 

 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

CERTIFICATE OF SERVICE 

I hereby certify that on February 10, 2017, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF System for filing. I certify 

that the following participants in the case are registered CM/ECF users and that service 

will be accomplished by the CM/ECF system on the following: 

Mark S. Hersh 

mhersh@reedsmith.com 

10 South Wacker Drive, 40th Floor 

Chicago, IL 60606-7507 

Mark J. DePasquale 

mdepasquale@dsazlaw.com 

DePasquale & Schmidt, PLC 

Attorneys at Law 

3300 N. Central Ave., Suite 2070 

Phoenix, AZ 85012 

Attorneys for Plaintiff 

Douglas Whitney 

doug.whitney@dwlollc.com 

321 N. Clark Street, Suite 1301 

Chicago, Illinois 60654 

 /s/ Jackquelynne S. Davis 

 

Case 2:15-cv-01948-SPL Document 73 Filed 02/10/17 Page 6 of 6