For instance, when a plaintiff files a claim and an element of that claim requires an assessment of privileged materials, the plaintiff's privilege protection will be waived. Century 21, Inc. v. Diamond State Ins. Co., No. 03-cv-5163 (GEL), 2006 WL 2355323, at *2-3 (S.D.N.Y. Aug. 10, 2006). Similarly, where parties assert affirmative defenses they bear the burden of proving, courts have found that the attorney-client privilege should be waived when the only means by which an opposing party can fully assess the factual assertions surrounding the affirmative defense is to review privileged materials.
) The Court further described that, for both of these questions, the Plaintiff bears the burden of proof. Id.; see Century 21, Inc. v. Diamond State Ins. Co., 2006 U.S. Dist. LEXIS 56733, at *7 (S.D.N.Y. Aug. 10, 2006). The Court concludes that Trident has not shown, based on a preponderance of the evidence, that Trident lacked fair notice and an opportunity to present evidence to the Board, or that the Board's substantive decisions to deny coverage were incorrect. Accordingly, judgment is to be entered for American Club.
Nevertheless, the "at issue" doctrine is construed narrowly.Century 21, Inc. v. Diamond State Ins. Co., 03 Civ. 5163 (GEL), 2006 WL 2355323 at *3 (S.D.N.Y. Aug. 10, 2006); Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., 90 Civ. 7811 (AGS)(JCF), 1994 WL 510043 at *11 (S.D.N.Y. Sept. 16, 1994). Dore claims that the plaintiffs' claim for damages resulting from the restatement puts at issue plaintiffs' communications with Locke Lord concerning the need to restate ACHI's financials.
The at-issue doctrine is construed narrowly. Century 21, Inc. v. Diamond State Ins. Co., 03 Civ. 5163 (GEL), 2006 WL 2355323 at *3 (S.D.N.Y. Aug. 10, 2006); Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., 90 Civ. 7811 (AGS) (JCF), 1994 WL 510043 at *11 (S.D.N.Y. Sept. 16, 1994). None of the elements necessary to apply the at-issue doctrine are present here.
In a practical view, however, Kidder was undertaking to prove detailed factual assertions that were analogous to an affirmative defense, and analogous to Bilzerian's proposed testimony. Finally, there is a recent decision by a different Lynch (Judge Lynch) in Century 21, Inc. v. Diamond State Ins. Co., 2006 WL 2355323, at *2-3 (S.D.N.Y. Aug. 10, 2006): . . . The time that an insured became aware of liability-triggering facts is central to determining the notice question, . . . .