Maplewood Partners, L.P. v. Indian Harbor Insurance

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION AND/OR CLARIFICATION AND RULING ON OTHER DISCOVERY DISPUTES RELATING TO CLAIMS OF ATTORNEY-CLIENT PRIVILEGE OR WORK-PRODUCT PROTECTION

1

WILLIAM M. HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court on Plaintiffs’ Motion for Reconsideration or, in *556 the Alternative, for Clarification of Order Overruling Plaintiffs’ Objections to Order Granting Motion to Compel; Plaintiffs’ Motion to Compel Production and Proper Responses to Requests for Admission; and Defendant’s Motion to Compel Additional Testimony. The Court has engaged in a lengthy and comprehensive review of the parties’ submissions, and pertinent portions of the record. Based on that review, the Court has determined that the Motion for Reconsideration and/or Clarification shall be DENIED, and the parties’ motions to compel each shall be granted, in part, for the reasons stated below.

I. INTRODUCTION

Plaintiffs Maple Wood Partners, L.P., Maple Wood Management, L.P., and Maple Wood Holdings, LLC, filed this action in December 2008 alleging breach of contract by Defendant Indian Harbor Insurance Company as to a financial and professional services indemnity policy. Plaintiffs were sued in three matters (the “Underlying Matters”) 2 and timely sought coverage pursuant to the subject insurance policy which provided coverage for the costs of defense fees and judgment or settlement amounts incurred by an insured. Briefly stated, Plaintiffs’ action before this Court alleges that Defendant failed to pay Plaintiffs’ claims in full as to the Underlying Matters; specifically, Plaintiffs challenge Defendant’s decision as to who was insured and what claims were covered, and the Defendant’s method of applying the policy’s retention amount to the covered claims.

Defendant argues that it has complied with the terms of the parties’ insurance contract, and describes the parties’ dispute as resulting from the Plaintiffs’ unwillingness to provide sufficient information regarding an appropriate allocation of loss between what is covered under the policy (i.e., insured claims brought against an insured) and what is not covered (i.e., claims brought against an uninsured, or those claims brought against its insureds but which are not covered claims under the policy). Defendant also argues that Plaintiffs have not had to pay any of the amounts for which they seek reimbursement, as other entities or insurers already have made the payments. While Plaintiffs do not dispute that others have made the payments, Plaintiffs assert that they are obligated to repay any amounts already paid by others. 3 Plaintiffs also argue that they have cooperated adequately with the insurer, pursuant to the terms of the policy, such that there is no basis for a denial of coverage.

The parties’ discovery disputes addressed in this Order each involve challenged claims of attorney-client privilege and work-product protections. Defendant has requested documents and communications between Plaintiffs and their agents or attorneys pertaining to the Underlying Matters, including assessments of potential liability and estimates of settlement values. Plaintiffs have objected to the production of more than 700 documents (including correspondence by letter or electronic-mail (“e-mail”)) on the basis of attorney-client privilege or work-product immunity. Defendant responds that the materials must be provided, as the parties effectively were joint clients of the insured’s attorney or at least had a common legal interest at the time such materials were made and, also, that the Plaintiffs’ specific allegations of breach of the policy have waived any potential claims of privilege or immunity as to certain subject matters. Defendant *557 also requests permission to have Plaintiffs’ counsel in the Underlying Matters sit for deposition again, in order to obtain answers to questions he previously refused to answer on the grounds of privilege. Finally, Plaintiffs seek Defendant’s allegedly privileged or protected materials in its file created during the processing of Plaintiffs’ claim.

While this case presents a relatively straightforward claim for breach of contract, the Court — in light of these discovery disputes involving important and heavily fact-dependent issues of attorney-client privilege and work-product protections — has provided an extensive summary of the relevant factual allegations. 4 The summary includes the insurance policy’s provisions, the entities and individuals described in the complaint, the legal actions which resulted in the claims for coverage under the policy, and the communications between the parties prior to the filing of this lawsuit. This statement of the relevant background provides context for the Court’s decision entered September 6, 2011 (overruling Plaintiffs’ objections to the Magistrate Judge’s Order overruling Plaintiffs’ objections to Defendant’s discovery requests), and for the Court’s decision today, which, hopefully, will bring clarity to this long-pending matter.

II. BACKGROUND

A. The insurance policy

In November 2006, Indian Harbor sold a “Financial Services Liability Policy” to Maple Wood Partners, L.P., as the “Named Insured.” ECF No. 1 (“Policy”), at 33. 5 The Policy includes sections providing coverage for Investment Advisers Management Liability, id., at 57-60 (“IAML”), Investment Advisers Professional Liability, id., at 61-65 (“IAPL”), and Investment Fund Management and Professional Liability, id., at 66-72 (“IFMPL”), and each coverage type has a separate maximum of $5,000,000 liability and a $250,000 “Retention,” id., at 33-34. The period of coverage was from November 4, 2006, through November 4, 2008. 6

The Policy is described as a “claims made policy.” Policy, General Terms and Conditions (“GTC”). The terms of the Policy require the insured to provide notice of any claim as soon as practicable after it is first made, id., GTC, General Conditions, (C), 7 and requires the insured to “provide the Insurer with all information, assistance and cooperation that the Insurer may reasonably request,” id., (I).

According to the Policy, the insurer was obligated to pay for “Defense Expenses” incurred in the defense of any “Claim” (as defined in the Policy to include civil proceedings in courts of law, or an arbitration) 8 brought against an “Insured.” GTC, General Definitions, (B) and (C). The Policy qualifies the definition of “Defense Expenses” as “reasonable legal fees and expenses incurred in the defense of any Claim.” Further, the Policy defines “Loss” as “damages, judg *558 ments, settlements or other amounts ... in excess of the Retention that the Insured is obligated to pay, and Defense Expenses, whether incurred by the Insurer or the Insured, in excess of the Retention.” GTC, General Definitions, (G). 9 Thus, the Policy envisions that covered losses will be in one of two categories: 1) an insured’s defense expenses and 2) the amount an insured is responsible to pay as a result of a judgment or settlement; both categories of loss are defined in the Policy to be only those amounts “in excess of’ the Retention. See also, GTC, General Conditions, (A)(4). 10 The Policy expressly states that it is in excess of coverage under any other insurance. “All Loss payable under this Policy will be specifically excess of, and will not contribute with, any other Insurance____This Policy will not be subject to the terms of any other insurance policy.” Id, (E).

The Policy provides that the insureds may not incur Defense Expenses “or admit any liability for, make any settlement offer with respect to, or settle any Claim without the Insurer’s consent----” GTC, General Conditions, (B)(2). Indian Harbor retains “the right to make investigations and conduct negotiations and, with the consent of the Insured, enter into such settlement of any Claim as the Insurer deems appropriate.” Id 11 Moreover, in a section titled “Assistance, Cooperation and Subrogation,” the Policy provides that:

The Insured agrees to provide the Insurer with all information, assistance and cooperation that the Insurer may reasonably request, and further agrees that it will do nothing which in any way increases the Insurer’s exposure under this Policy or in any way prejudices the Insurer’s potential or actual rights of recovery.

Id, (I)(l). The insured also is required to “do everything necessary to secure [subrogation rights of the insurer], and will provide all other assistance and cooperation which the Insurer may reasonably require.” Id, (I)(2). 12

In the event that an insured incurs a loss that is not within the definition of “Loss” in the Policy, e.g., a claim is made against the insured as to a matter not covered by the Policy or a claim is made against the insured along with allegations against others not insured by the Policy, the insurer is entitled to “allocate” the loss and pay only the portion considered to be a covered “Loss,” pursuant to the terms of the Policy.

If both Loss covered by this Policy and loss not covered by this Policy are incurred ... the Insured and the Insurer will use their best efforts to determine a fair and appropriate allocation of Loss between that portion of Loss that is covered under this Policy and that portion of loss that is not covered under this Policy. Additionally, the Insured and the Insurer agree that in determining a fair and appropriate allocation of Loss, the parties will take into account the relative legal and financial exposures of, and relative benefits obtained in connection with the defense and/or settlement of the Claim by, the Insured and others.

GTC, General Conditions, (B)(4). When the insured and the insurer are unable to reach agreement as to how to allocate loss, the Policy provides that “the Insurer shall advance that portion of Loss which the Insured *559 and the Insurer agree is not in dispute until a final amount is agreed upon or determined.” Id., (B)(5). The “allocation clause,” GTC, General Conditions, (B)(4), is at the heart of the parties’ coverage dispute, and is key to their dispute as to whether allegedly privileged or protected communications and materials can be discovered.

Plaintiffs describe themselves as “Policyholders” in the complaint, but the parties are not in agreement as to the identity of the insureds, i.e., there is a dispute as to which entities or individuals are entitled to coverage under the Policy. In order to evaluate the Plaintiffs’ claims of privilege as to the withheld documents and evidence of communications, it is necessary to understand the identities of the alleged “insureds” and the scope of coverage provided in the Policy.

B. The entities and individuals in this action, and their relevant relationships

The complaint describes the following entities as Plaintiffs:

—Maple Wood Partners (a limited partnership providing financial advisory services to companies including Julio & Sons, Maple Wood Equity Partners, L.P. and Maplewood Equity Partners (Offshore) Ltd.), ECF No. 100, ¶ 5.

—Maple Wood Management (a limited partnership serving as the funds manager for Maple Wood Equity Partners, L.P., and Maple Wood Equity Partners (Offshore) Ltd.; a limited partner of Maple Wood Equity Partners, L.P.; a shareholder of Maple Wood Equity Partners (Offshore) Ltd.; and the managing member of Julio Investors, LLC), ECF No. 100, ¶ 6. —Maple Wood Holdings (a limited liability company serving as the general partner in both MapleWood Partners and MapleWood Management; members of MapleWood Holdings during the relevant period of this case are Robert V. Glaser, Robert J. Reale, Joseph DaGrosa, and Glen Dell — and each of these persons also is a limited partner of both MapleWood Partners and MapleWood Management), ECF No. 100, ¶¶ 7-10.

The complaint also lists the following as Relevant Nonparties:

—Maple Wood Equity Partners, L.P. (an equity investment fund, with MapleWood Management as its general partner)

—MapleWood Equity Partners (Offshore), Ltd. (an equity investment fund, with MapleWood Management as its shareholder and manager) 13

—Julio & Sons Company (formerly known as Lucky Boy Corp.; sole shareholder of subsidiaries that operate the Uncle Julio’s chain of Mexican restaurants) 14

—Julio Investors, LLC (the majority owner of Julio & Sons; Julio Investors is owned by MapleWood Equity Partners and MapleWood Equity Partners (Offshore))

—Robert V. Glaser (managing member of MapleWood Holdings, limited partner of MapleWood Management and MapleWood Partners, and employee of MapleWood Partners at all relevant times; Director of Julio & Sons and Uncle Julio’s since 2007; Chair of Executive Committee and Investment Committee of MapleWood Partners, MapleWood Management, and MapleWood Holdings, 15 and Director of MapleWood Equity Partners (Offshore) at all relevant times)

—Robert J. Reale (member of MapleWood Holdings, limited partner of MapleWood Management and MapleWood Partners, and employee of MapleWood Partners at all relevant times; Director of Julio & Sons and Uncle Julio’s from 2001 to 2005; served on Executive Committee and Investment Committee of MapleWood Partners, MapleWood Management, and MapleWood Holdings at all relevant times)

*560 —Joseph DaGrosa (member of Maple-Wood Holdings, limited partner of Maple-Wood Management and MapleWood Partners at all relevant times; employee of MapleWood Partners, and served on Executive Committee and Investment Committee of MapleWood Partners, MapleWood Management, and MapleWood Holdings at least some part of the time relevant to this action)

—Glen Dell (member of MapleWood Holdings, limited partner of MapleWood Management and MapleWood Partners at all times relevant to this lawsuit; served on the Executive Committee and Investment Committee of MapleWood Partners, MapleWood Management, and MapleWood Holdings through 2001)

—Lt. Gen. Burton C. Glosson (Director of Julio & Sons and Uncle Julio’s since 2004, and “indirect limited partner” in Maple-Wood Equity Partners at all relevant times)

—Rick Levitt (Director of Julio & Sons and Uncle Julio’s since 2001, employee of MapleWood Partners from 2002-2007)

—Bill Tillett (Director of Julio & Sons and Uncle Julio’s since 2001, employee of MapleWood Partners until 2002, member of MapleWood Holdings and limited partner of MapleWood Management and Maple-Wood Partners through 2001; and served on Executive Committee and Investment Committee of MapleWood Partners, MapleWood Management, and MapleWood Holdings through 2001)

—Greg Morris (chief financial officer of Julio & Sons, 2003-2006; served on Investment Committee of MapleWood Partners, MapleWood Management, and MapleWood Holdings through 2003, former employee of MapleWood Partners)

—Abdo Shashy (President of Julio & Sons, 1997-2006, Director of Uncle Julio’s)

—Gerald Green (Vice President of Julio & Sons, 1997-2006)

ECF No. 100, ¶¶ 13-51.

1. The individuals behind the MapleWood entities

The evidence before the Court reveals that MapleWood Partners had a small number of employees who carried out the firm’s function of providing financial services, while MapleWood Management (a manager of funds), and MapleWood Holdings (general partner of the other two MapleWood entities appearing here as Plaintiffs) never had employees. ECF Nos. 168-2, 168-3, Transcript of Deposition Testimony of Robert V. Glaser, May 17, 2011 (“Glaser Dep. Maple Wood”), at 17. 16 Since 2003 or 2004, the entities had been represented by attorney Brian Miller, of the Miami office of the Akerman Senterfitt, LLP, law firm. 17 It is clear from the record that the three Plaintiff entities had one individual in common as their primary contact for purposes of communication with counsel: Glaser, who served as Chair of the Plaintiffs’ Executive and Investment Committees, and also was an employee of MapleWood Partners. 18

*561 Other employees of MapleWood Partners included: Levitt (until 2007), Tillett (until March 2002), Morris, Reale, Dagrosa and Dell. ECF No. 153 — l. 19 . In September 2011, the MapleWood current and former employees noted above (Glaser, Levitt, Tillett, Morris, Reale, Dagrosa and Dell), along with Glosson, 20 were granted leave to intervene in this action for the limited purpose of asserting objections to this Court’s Order on discovery of information as to which these Intervenors now claimed a privilege. 21 These men asserted that they each had been “representatives of Plaintiffs” and had “participated in decisions concerning Plaintiffs, litigation strategy, settlement strategies and actions taken concerning insurance coverage.” ECF No. 214 (Emergency Motion for Leave to Intervene, filed by Plaintiffs’ counsel on behalf of the Intervenors). Intervenors described Glaser and Reale “as the de facto management committee [for the MapleWood entities, i.e., Plaintiffs in this case],” and noted that Reale “has appeared at depositions as a representative of the client group as a whole.” ECF No. 214. At depositions in this case, Glaser testified as the corporate representative, pursuant to Fed.R.Civ.P. 30(b)(6), for all three of the Plaintiff Maple Wood entities, Glaser Dep. MapleWood. 22

2. MapleWood Partners and Julio & Sons are related entities

According to the pleadings, MapleWood Partners provides advisory services to Julio & Sons Company, pursuant to “contracts, and in exchange for a fee.” ECF No. 100, ¶ 21. MapleWood entities, including Plaintiffs in this action, also were the owners and managers of Julio & Sons. 23

A review of the record reveals that, at least at the time this action was filed, Julio & Sons Company — whose majority shareholder was Julio Investors — was the sole owner of Uncle Julio’s Corporation. 24 Julio Investors had been created in December 2001 25 by MapleWood entities for the purpose of the acquisition of Uncle Julio’s Corporation. 26 Julio Investors — which has no employees— acted only through MapleWood Management, the managing member of Julio Investors, and action by MapleWood Management required the signature of its general partner, Maple-Wood Holdings. 27 Therefore, Glaser not *562 only was the primary contact for all three of the Plaintiffs, but also, as managing member of MapleWood Holdings, was the voice of Julio Investors.

As noted above, Glaser testified at a deposition in this case as the Plaintiffs’ representative; he also testified in a separate deposition as the corporate representative for Julio & Sons Company, ECF Nos. 153-3, 210-9, 241 (Transcript of Deposition Testimony of Robert V. Glaser, June 15, 2011, excerpts only) (“Glaser Dep. Julio’s”). 28 Glaser was a Director of Julio & Sons as of February 2007; other Directors of Julio & Sons (and Uncle Julio’s Corporation 29 ) during relevant times included: Glosson, 30 Reale, 31 Morris, 32 Levitt and Tillett, 33 in addition to Todd Conger. 34 Glosson also served as a limited partner in MapleWood Equity Partners, the owner, along with MapleWood Equity Partners (Offshore), of Julio Investors, which was the majority shareholder of Julio & Sons, ECF No. 100, ¶¶28, 39; thus, arguably, Glosson also represented the interests of Julio Investors.

Plaintiffs’ provision of advisory services to Julio & Sons included an agreement as to indemnification and, consistent with that agreement, Julio & Sons advanced all defense expenses incurred by MapleWood Partners in defense of the Underlying Matters. Id, ¶ 23. 35 That agreement is found in the Advisory Agreement which MapleWood Partners entered into with Uncle Julio’s Corporation on December 17, 2001, ECF No. 171-2. The 2001 Agreement provides that Uncle Julio’s would indemnify MapleWood Partners from any claims relating to its association with Uncle Julio’s. 36 On September 23, 2008 (after all of the Underlying Matters had been filed against MapleWood), MapleWood Partners entered into a superseding Advisory Agreement with Uncle Julio’s Corporation; Julio & Sons was also a party to the agreement. ECF No. 171-4. According to the 2008 Agreement, MapleWood was to be indemnified by Uncle Julio’s and Julio & Sons, jointly and severally. 37 Both agreements contained an exception to the indemnity provision in the event of bad faith or gross negligence by MapleWood.

The record before the Court includes an “Assignment and Assumption Agreement” which purports to assign to Julio Investors certain amounts which MapleWood entities might receive from Indian Harbor, signed by Glaser on September 12, 2011, on behalf of *563 all parties to the Agreement. 38 In Glaser’s own words: “Well, there were times, I guess, I had multiple roles. So when I sat there listening [in meetings], I wasn’t able to differentiate whether I was listening for Julio or for MapleWood at times. But if any formal decisions were taken, they were taken in a formal capacity role.” Glaser Dep. Julio’s, ECF No. 153-3, at 29. 39 When communicating by e-mail, which appears to be the primary method by which Glaser communicated with attorneys for the “MapleWood group of companies,” Glaser only sent emails from MapleWood Partners. “That’s my e-mail account for I am an employee.” Id., at 127 .

The Court has determined that there is no relevant difference between the Plaintiffs and Julio Investors (or the company as to which it was majority shareholder, Julio & Sons) for the purposes of addressing the discovery disputes at issue. Plaintiffs’ proffered evidence reveals that the same individuals controlled these entities, and Plaintiffs themselves have described Julio Investors and Julio & Sons as insureds under the subject Policy and — at least implicitly — seek coverage on behalf of all of these entities. Thus, the Court finds that Glaser and all of the Intervenors were representatives of the entities, and the interests of these entities were identical or aligned as to any matter relevant to this discovery dispute.

C. The Underlying Matters

In 2007, two different lawsuits were filed against certain MapleWood entities and their officers or directors, alleging negligent misrepresentation and breach of fiduciary duties relating to the provision of financial advisory services to Julio & Sons. In 2008, another action was filed against the defendants, alleging damages related to the expiration of stock options as to Julio & Sons.

The MapleWood entities and individuals were represented in these matters 40 by Miller, serving as the lead attorney, 41 and other members of his firm, 42 and by Gary Kessler and Brad D’Amico of the law firm Kessler Collins (the firm is in Dallas, Texas). 43 Julio & Sons was included in certain of these actions, and was represented by Michael Adams (and other attorneys at the firm Parker Poe Adams & Bernstein firm), 44 and *564 Joseph Cox (of the firm Hughes & Luce LLP and then at Patton Boggs). 45 Miller described that these entities and attorneys coordinated a joint defense, and were members of a “joint defense” group, i.e., the group included the MapleWood entities, the Julio entities, the Intervenors, and all of the counsel noted above. Miller Dep., at 92,169, 291, 309, 327. Miller testified that he “determined that [his law firm] could represent [all of the defendants, including officers and directors of Julio & Sons, as to certain of the Underlying Matters] on a joint basis without having a conflict of interest,” but that his law firm was not asked to represent Julio & Sons. Id., at 30-32, 36. 46 Miller testified that there was no written joint defense agreement, but “[w]e did what we could to try to keep costs down and assigned projects to different people to be responsible for certain areas rather than duplicate effort.” Id., at 290-91 47

1. The RRGC action

Retail and Restaurant Growth Capital, L.P. (“RRGC”), 48 filed a lawsuit in state court in Texas in February 2007, against MapleWood Partners, MapleWood Management, MapleWood Holdings, Julio & Sons, and Glaser (the “RRGC Action”). Briefly, RRGC, a small business investment company, had invested in Julio & Sons (sole shareholder of subsidiaries operating the Uncle Julio’s chain of Mexican restaurants) through a note purchase agreement and warrant agreement, giving RRGC the right to purchase shares in Julio & Sons. RRGC alleged that the defendants, who invested in Uncle Julio’s at the same time as RRGC and began operating the company, gave bad advice to Uncle Julio’s thereby causing $10 million in economic damages and $20.75 million in punitive damages. 49 A Second Amended Petition was filed in March 2008. According to the Second Amended Petition, Glaser “through a web of entities, controls Uncle Julio’s,” and he “was the master-mind of a scheme and artifice that was designed to hide the movement of funds without RRGC’s knowledge.” ECF No. 151-1, at 4, 7. 50 Glaser ultimately was dismissed from the RRGC Action on *565 August 25, 2008, for jurisdictional reasons. ECF No. 100, ¶ 128.

The defendants (acting as a joint defense group, as noted above) responded to the complaint, asserting, inter alia, that the claims were barred by waiver and a release executed by RRGC, that no fiduciary duty was owed to RRGC, 51 and that RRGC had breached a covenant not to sue. ECF No. 151-1, at 17-19, 27. They also filed a counterclaim alleging that RRGC breached a contract between RRGC and Julio & Sons (as to which defendants were intended third-party beneficiaries), that RRGC’s partners (Mark L. Masinter and Joseph L. Harberg) and others breached their fiduciary duty to defendants by encouraging defendants to acquire Tia’s restaurants, and that RRGC had conspired in an attempt to convince defendants to Purchase the Tia’s restaurants for more than they were worth. ECF No. 151-1, at 20, 25-27, 32, 35-36.

During the pendency of the RRGC litigation, Miller communicated regularly with Indian Harbor, through the insurer’s counsel. 52 Miller provided assessments of liability, litigation updates, and settlement estimates — all pursuant to and consistent with the Policy’s cooperation clause. Miller also prepared a litigation budget 53 and a “Pre-trial Report” for Defendant, who paid for the preparation of the Report, which included an assessment of the financial and legal risks of the litigation. See ECF No. 40, at 17 (Plaintiffs’ Opposition to Defendant’s Motion to Compel). 54

Miller testified that he expressed to Indian Harbor that “if liability was found, that it was joint and several liability and that the MapleWood parties were much more likely to be ... liable for the amount because of the facts that I already explained.” Miller Dep., at 194, 199-200. 55 According to Defendant’s employee responsible for making the determination as to coverage of Plaintiffs’ claim: 56

in speaking with defense counsel prior to the settlement, he separated the warrant repurchase and damages separately. The warrant repurchase is a noncovered claim. He valued the amount of potential damages against MapleWood and Julios at a million dollars.

ECF No. 89-4, Transcript of Deposition of Rebecca Pidlak, April 14, 2011 (Pidlak Dep.) at 145. 57 Pidlak also recalled that “Miller indicated that the most he could recommend that we settle the damages component [as compared to the warrant buyback] of the RRGC matter was with $1 million.” Pidlak Dep., at 290.

As the trial date approached in the RRGC action, settlement discussions advanced. The defendants addressed settlement as a unified group, and there is no evidence in the record *566 before the Court that the defendants discussed an allocation of responsibility among themselves for any payments which might be made to RRGC. Miller testified that he never discussed with anyone the settlement value of the claims asserted against the Maple-Wood entities separate from the claims against Julio & Sons, as RRGC had alleged joint and several liability against the defendants. Miller Dep., at 189. 58

Miller sent a draft settlement agreement to Glaser and Reale, as representatives of MapleWood Partners, MapleWood Management, and MapleWood Holdings. Miller Dep., at 282. Intervenors Glosson, Levitt and Tillett also reported that they “participated in phone conferences and meetings discussing defense and joint defense issues in relation to RRGC [in which they were not named individually as parties], and were consulted from time to time, especially on matters of settlement” by Glaser and Reale “who acted as the de facto management committee [for the MapleWood entities].” ECF No. 214. According to Miller, the board of directors of Julio & Sons “was involved” but did not participate in the discussions with RRGC. Miller Dep., at 206-207. (Miller testified that he participated in telephone calls with the board of Julio & Sons, upon the request of either Glaser or Glosson. Id.) 59 Glaser has testified that there were no discussions between representatives of Julio & Sons and representatives of any of the MapleWood entities about allocation of liability between them for any settlement of the RRGC action. Glaser Dep. Julio’s, ECF No. 153-3, at 29-30. 60

An attorney for RRGC has testified that RRGC did not negotiate separately with Julio & Sons as compared to the MapleWood entities. “Cox was the point man pretty much for the entire group. And he was the lawyer just for Uncle Julio’s. But it was always a global settlement for all defendants ____ [and all claims were settled].” ECF No. 153-7, Transcript of Deposition Testimony of Ernest Leonard, May 31, 2011 (“Leonard Dep.”) — excerpts only, at 31. After being shown a copy of an e-mail dated August 18, 2010, which purportedly 61 says “Brian, to follow up on our conversation,” Leonard admitted that he also may have had a conversation with Miller at the time of the settlement discussions. Leonard Dep., at 32-33.

Defendant was included in the RRGC settlement discussions. Michael Huber (of the law firm Ver Ploeg & Lumpkin, which represents Plaintiffs before this Court) 62 provided *567 Indian Harbor with the RRGC settlement proposal (which had been received by Miller and then provided to Huber). ECF No. 144-2 (Aug. 24, 2010, e-mail Huber to McNutt). Counsel for Indian Harbor responded that “last week we had a call with Brian Miller. Hugh Lumpkin [of Ver Ploeg & Lumpkin] participated in the call. Brian told us that after the MapleWood Entities received an updated demand they would have a meeting to decide how they wanted to respond to the offer.” ECF No. 144-2. 63 Several days later, counsel for Indian Harbor wrote to Huber and Lumpkin:

to confirm our discussions concerning RRGC’s settlement offer____ As we discussed, Indian Harbor previously agreed to contribute $125,000 toward a settlement up to [$1 million] for the potential liability damages .... premised on MapleWood’s defense counsel’s [Miller’s] assessment of a reasonable settlement value of [$1 million] for potential liability____As we confirmed to you earlier, subject to the terms of this agreement [which was to be without prejudice to any positions previously taken], Indian Harbor agrees to contribute $250,000 toward the settlement.

We were only asked to pay $250,000, which is exactly what we did.... So taldng into consideration a 25 percent allocation [of the damages estimated by Miller to be $1 million], it makes sense that it was requested of Indian Harbor, and we did, in fact, pay what you asked us to. Pidlak Dep. at 145. The Court denies Plaintiffs' counsel's request to strike this statement.

ECF No. 204-3 (Aug. 27, 2010, e-mail Gere to Huber). 64

The RRGC action finally settled on September 3, 2010, for $2,750,000. Of the total settlement amount, Julio & Sons paid $1,750,000, and Indian Harbor paid $250,000. 65 Another insurer (Travelers Casualty and Surety Company of America (“Travelers”)) paid the balance of $750,000 toward the settlement; Travelers made that payment on behalf of its insured, Julio & Sons, and also on behalf of Glaser. ECF No. 156-1 (Oct. 11, 2010, letter Gere to Cox). Julio & Sons and Travelers also made all of the payments for defense expenses. Glaser described that all of the defense fees billed by Akerman Senterfitt or Kessler Collins prior to the date Glaser was dismissed from the RRGC action (August 25, 2008) were assumed to relate to Glaser, and Julio & Sons had demanded coverage from Travelers for those invoices (and subsequently settled its claim with Travelers). Glaser Dep. MapleWood, at 233. 66 Glaser has testified that *568 he believed that the insurance policy issued to Julio & Sons by Travelers covered him as to the RRGC action, Glaser Dep. Maple-Wood, at 131, and he admitted that he knew that Travelers was obligated, by a court order, to pay Glaser’s defense costs in that action, id., at 228-30. 67

The MapleWood entities (and Glaser) paid nothing as to either defense expenses or the settlement of the RRGC action, pursuant to those parties’ indemnification agreement. 68 Although they did not make any payments for defense expenses directly, Plaintiffs claim that they incurred a total of $1,710,000 in defense fees for the RRGC action. Glaser Dep. MapleWood, at 58.

2. The Shashy matter

In June 2007, Shashy and Green, on behalf of themselves and Julio & Sons, filed a lawsuit in state court in Texas against Maple-Wood Partners, Maplewood Management, Maplewood Holdings, Julio Investors, Uncle Julio’s, Glaser, Glosson, Levitt, Morris, Reale, and Tillett. 69 The lawsuit claimed that these defendants breached a stockholder’s agreement by failing to re-elect Shashy to the Board of Julio & Sons (in February 2007), and breached Shashy’s employment agreement by failing to renew his employment (in December 2006). 70 The suit also claimed that the MapleWood defendants wasted corporate assets and engaged in conversion or statutory theft by making unsound investments in Tia’s restaurant in 2003 and diverting resources from Uncle Julio’s to keep Tia’s afloat. Shashy and Green also alleged conspiracy and other claims, and sought a total of $26 million in economic damages. ECF No. 100, ¶¶ 134-143.

The Shashy lawsuit was stayed and referred to arbitration in November 2007, ECF No. 152-1, at 30, after certain defendants sought arbitration pursuant to the stockholder’s agreement and the employment agreement. The defendants in the Shashy lawsuit (MapleWood Partners, MapleWood Management, MapleWood Holdings, Julio & Sons, Julio Investors, Glaser, Glosson, Levitt, Morris, Reale, and Tillett-all represented by Miller and his firm, ECF No. 214) initiated the Arbitration by filing a claim against Shashy and Green 71 (i.e., the substance of the claimants’ allegations would have been their counterclaim in the state court lawsuit), alleging misconduct by Shashy and Green, including breach of contract, fraud, violation of a non-compete covenant, mismanagement, misappropriation of company funds, providing company information to third parties, and other claims. ECF No. 100, ¶ 147. Shashy and Green then filed a counterclaim in the Arbitration which restated the claims made in their original suit in state court.

The Shashy claims and the MapleWood counterclaims (collectively, the “Shashy matter”) all were resolved as a result of a mediation conducted in early April 2008, at which Indian Harbor and its counsel were present. ECF No. 40-11 (April 11, 2008, letter Lump-kin to Simon). 72 The settlement required *569 Julio & Sons to pay $3,288,520. MapleWood paid no portion of the settlement (nor are they seeking coverage for the settlement 73 ), but Plaintiffs claim to have incurred a total of $385,000 in defense expenses, Glaser Dep. MapleWood, at 58, 173 (all of which was paid by Julio & Sons, ECF Nos. 153 at ¶ 38; 192 at ¶ 38) — -for which they seek payment by Defendant.

3. The Green claim

In May 2008 a supplemental counterclaim was filed by Gerald Green in the then recently-settled Arbitration. The counterclaim was filed against the same entities and individuals whom Green had sued in the Shashy lawsuit, above (i.e., the claimants in the Arbitration— which includes the three MapleWood entities appearing as Plaintiffs before the Court today). Green alleged that he had options to buy Julio & Sons’ stock and had suffered economic damages of $665,400, but the respondents to his counterclaim argued that Green had let the options expire. The claim was arbitrated and denied, on October 22, 2008, ECF No. 100 at ¶ 164, and the parties were ordered jointly to pay the arbitration fees and expenses. The arbitration claimants/Shashy lawsuit defendants also were responsible for their own attorneys’ fees, which they claim were $68,000. Glaser Dep. MapleWood, at 58, 173. Although all of the defense expenses were paid by Julio & Sons, Plaintiffs seek payment from Defendant for this amount. (ECF Nos. 153, ¶ 41; 192, at ¶ 41).

D. Who is insured) and as to what types of claims in the Underlying Matters?

Plaintiffs acknowledge that MapleWood Partners is the only Named Insured, ECF No. 100, ¶5, but allege that they, and the related entities and individuals identified in the complaint, are “Advisers” or “Insured Persons” as defined in the Policy’s various coverage parts (e.g., IAML, IAPL, or IFMPL), ECF No. 100, ¶¶ 77, 78, 87, 88, 99, 101, or are “Investment Funds” or a “Portfolio Company.” ECF No. 100, ¶¶93, 94, 100. 74 Plaintiffs also assert that they are obligated to indemnify their “past, present and future directors, officers, partners, principals, members, trustees, and employees”— as well as Julio & Sons Company- — for Loss resulting from Claims as defined in the Policy. ECF No. 100, ¶¶10-11. 75 In other words, Plaintiffs assert that they are seeking funds which will be provided to, or will benefit: Julio & Sons, DaGrosa, Dell, Levitt, Tillett, Morris, Glaser and Reale.

Defendant views the following as potentially insured, according to each type of coverage in the Policy, and each of the Underlying Matters:

1. IAML coverage

Coverage pursuant to the IAML provisions is available for loss suffered by an “Insured Person” or an “Adviser” as a result of Claims brought during the Policy period for “Wrongful Acts.” 76 IAML, 1(A), (B). An “Adviser” is defined, in pertinent part, as the Named Insured, i.e., MapleWood Partners, and any “Subsidiary,” 77 and “Insured Person” is defined, in pertinent part, as a director, officer or member of the Board of Managers of the Adviser, or those serving in a functionally equivalent role for the Named Insured. The Policy states that “Insured” means the “Insured Persons and the Adviser.” IAML, 11(C). Thus, the Insured, under this coverage, is MapleWood Partners and its “past, *570 present or future” directors, officers or persons serving in a functionally equivalent role. IAML, 11(D).

A “Wrongful Act” is defined as “any actual or alleged act, error, omission, misstatement, misleading statement or breach of duty [by an Insured Person] but solely by reason of his or her status as such” or “any actual or alleged act, error or omission, misstatement, misleading statement or breach of duty by the Adviser [MapleWood Partners].” IAML, 11(F) (emphasis added). It is undisputed that the Named Insured, i.e., the Adviser, MapleWood Partners, was sued in the RRGC and Shashy lawsuits, and the Green claim, and that the actions complained of in those three matters 78 involved alleged acts and breaches of duty by MapleWood Partners, i.e., “Wrongful Acts” pursuant to the IAML provisions.

Indian Harbor communicated its interim decision regarding coverage for MapleWood Partners as to the RRGC and Shashy lawsuits in letters directed to Glaser, dated June 20, 2007, ECF No. 40-5 (re: RRGC action), and July 9, 2007, ECF No. 40-7 (re: Shashy action), and as to the Green Claim in a letter directed to Miller, dated June 13, 2008, ECF No. 40-9. 79 The letters are described as the insurer’s “preliminary assessment of coverage” and specifically note that “further investigation and developments in the [RRGC and Shashy actions] may affect” the coverage analysis. 80 Glaser and Miller were invited “to provide [the insurer] with any additional information that would confirm or clarify the preliminary conclusions” that Indian Harbor had reached, and were informed that “there are a number of open questions regarding the availability of coverage under the Policy [for the RRGC and Shashy actions and the Green Claim].” Id.

That same correspondence, mentioned above, advised Glaser that he was “likely ... an Insured Person” as defined in the IAML provisions, because he served as Managing Partner of MapleWood Partners, as to both the RRGC and the Shashy actions. 81 However, Indian Harbor stated that the claims in the RRGC and Shashy actions did not appear to meet the definition of “Wrongful Act” as to an “Insured Person.” Specifically, in the RRGC action, the insurer said that Glaser apparently was being sued in his capacity as majority shareholder of Uncle Julio’s and not “ ‘solely’ by reason of [his] status as an Insured Person.” ECF No. 40-5. 82 Miller, on behalf of Glaser and the MapleWood entities, responded that coverage should be provided to Glaser as he had been sued solely in his capacity representing the “Adviser,” Maple-Wood Partners. ECF No. 40-10 (Oct. 12, 2007, letter Miller to Simon).

In the Shashy action, Indian Harbor took the position that Glaser was being sued as a director of Uncle Julio’s, along with Reale— also determined to possibly be an “Insured Person” under the IAML coverage — and since it was not clear that they were being sued “solely” by reason of their status as an Insured Person, coverage was denied under IAML. ECF No. 40-7. 83

*571 In summary, the insurer preliminarily determined that coverage was available under IAML as to MapleWood Partners (as to all three of the Underlying Matters); the insurer identified Glaser and Reale as possibly insured under IAML, but not as to the complaints brought in the Underlying Matters.

2. IAPL coverage

Pursuant to the IAPL provisions of the Policy, coverage is available for loss suffered by an “Insured” as a result of Claims brought during the Policy period for “Wrongful Acts.” IAPL, I. An “Adviser” is defined, in pertinent part, as the Named Insured, i.e., MapleWood Partners, and any Subsidiary, and “Insured Person” is defined, in pertinent part, as a director, officer, partner, principal, member, trustee or employee of the Adviser. IAPL, 11(A), (C). The Policy states that “Insured” means the “Insured Persons and the Adviser.” IAPL, 11(B). Thus, the Insured, under this coverage, is MapleWood Partners and its “past, present or future” directors, officers, partners, principals, members, trustees or employees.

A ‘Wrongful Act” is defined, in pertinent part, as “any actual or alleged act, error, omission, misstatement, misleading statement or breach of fiduciary duty or other duty [by an Insured] in the performance of. or failure to perform, Professional Services.’’ IAPL, II(E). 84 It is undisputed that Maple-Wood Partners, the “Adviser,” and Glaser, an “Insured Person,” were sued in the RRGC and Shashy lawsuits, and Reale— whom also may have qualified as an “Insured Person” under IAPL (as an employee of MapleWood Partners) — was sued in the Shashy lawsuit. The insurer’s preliminary assessment of coverage did not conclude that the actions complained of in the RRGC and Shashy lawsuits involved alleged acts or breaches of duty related to the provision of Professional Services, i.e., “Wrongful Acts” pursuant to the IAPL provisions. 85 Similarly, as to the Shashy lawsuit, the insurer stated that:

[t]he questions here are whether you [Glaser], Mr. Reale and/or MapleWood were performing the identified services and, if so, whether those services were provided for a fee or commission. Even if these questions were answered in the affirmative, it is not entirely clear that the [Shashy lawsuit] would constitute a Claim against MapleWood [Partners], you and Mr. Reale “for” such Wrongful Acts.

ECF No. 40-7.

Indian Harbor reserved its rights with regard to those questions, and invited Glaser to provide information to “clarify the situation.” 86 Miller responded to this position by noting that MapleWood Partners earned a fee for the provision of “Professional Services” to Julio & Sons and the two Maple-Wood Equity funds, ECF No. 40-10, and that the RRGC complaint alleged that Glaser and MapleWood Partners engaged in fraud as to a lease guaranty by Julio & Sons and the two MapleWood Equity funds, such that coverage under the IAPL part of the Policy should apply. ECF No. 40-10. A subsequent communication by the insurer indicated that the claims as to Glaser in the RRGC action may be subject to an exclusion in the *572 Policy’s IAML and IAPL coverage sections which denies coverage as to claims brought against an Insured Person “acting in his or her capacity as a ... partner ... or employee of any entity other than an [Adviser,] Insured or Outside Entity.” ECF NO. 40-14 (referring to IAML, Exclusions, (H); IAPL, Exclusions, (H); and IFMPL, Exclusions, (H)).

In summary, the insurer preliminarily determined that coverage was available under IAPL only as to MapleWood Partners, Glaser, and Reale, at most, but not necessarily as to the complaints in the Underlying Matters.

S. IFMPL coverage

Coverage pursuant to the IFMPL provisions is available for loss suffered by an “Insured” as a result of Claims brought during the Policy period for ‘Wrongful Acts.” IFMPL, I. “Insured” is defined to include the Named Insured, i.e., MapleWood Partners, as well as “Insured Persons,” and “Investment Funds” 87 and their general partner or managing general partner (if organized as a limited partnership) or managing member (if organized as a limited liability company), and specifically does not include an “Outside Entity” (which includes a “Portfolio Company” 88 ) as an “Insured.” IFMPL, 11(A), (G). The Policy lists MapleWood Equity Partners, LP, and MapleWood Equity Partners (Offshore), Ltd., as Investment Funds. Policy, Schedule of Investment Funds.

“Insured Persons” under this coverage part is defined to include a director, officer, partner, principal, member, trustee or employee of an “Investment Fund” or their general partner or managing general partner (if organized as a limited partnership) or managing member (if organized as a limited liability company). IFMPL, 11(C). A “Wrongful Act” is defined as “any actual or alleged act, error, omission, misstatement, misleading statement or breach of fiduciary duty or other duty committed by an Insured in the performance of, or failure to perform Professional Services ” 89 or “by an Insured Person in his or her capacity as a director. officer, member of the Board of Managers, general partner, or managing general partner of an Investment Fund ” or “any matter asserted against an Insured Person solely by reason of his or her status as a director, officer, member of the Board of Managers, general partner, or managing general partner of an Investment Fund,” or acts by an “Insured person in his or her Outside Capacity.” 90 IFMPL, II(J) (emphasis added).

It is undisputed that the Named Insured, i.e., MapleWood Partners, was an Insured under the IFMPL as to both the RRGC and Shashy actions. Indian Harbor also concluded that MapleWood Management was an Insured (as General Partner of MapleWood Equity Partners, and as Manager of Maple-Wood Equity Partners (Offshore)), and that Glaser was an Insured Person (as Director of MapleWood Equity Partners (Offshore)). ECF No. 40-5. The insurer did not find, however, that the allegations in the RRGC action met the definition of “Wrongful Acts” pursuant to the IFMPL provisions.

Indian Harbor’s “preliminary assessment of coverage” indicated that it did not appear from the allegations in the RRGC action, nor the Shashy matter, that MapleWood Partners, MapleWood Management, and Glaser were being sued for acts or omissions relating to services by or on behalf of an Investment Fund, 91 nor that Glaser had been sued *573 in his capacity or by reason of his status as the Director of MapleWood Equity Partners (Offshore). ECF No. 40-5. 92 Miller, on behalf of Glaser and the MapleWood entities, disputed the insurer’s assessment and argued that the allegations in the RRGC action did meet the definition of “Wrongful Act” because, inter alia, they involved claims against Glaser personally, due to his role as a director of one of the Investment Funds, and also included claims that Glaser, MapleWood Management and MapleWood Holdings had engaged in fraud and breach of fiduciary duty in connection to the investment in the Tia’s restaurants by the Investment Funds. ECF No. 40-10. The insurer responded that the RRGC allegations did not appear to relate to Glaser’s acts or omissions in his capacity as director of the Investment Fund. ECF No. 40-6 (Nov. 13, 2007, letter from Simon to Miller). 93

Finally, as to the Green claim, Indian Harbor noted that Glaser also may be considered as an Insured under the IFMPL coverage, because he served as a director of an Outside Entity (Julio & Sons) during the period of the alleged conduct and, as such, the Green claim may be a Claim against Glaser for a Wrongful Act in his Outside Capacity. ECF No. 40-9. 94

In summary, the insurer preliminarily determined that coverage was available under the IFMPL provisions in the Policy, but only as to MapleWood Partners, MapleWood Management, Glaser, and Glosson; however, as to these entities and individuals, the only claims which might be covered were those brought against Glaser and Glosson in the Shashy action and the Green claim. In addition to the issues noted above, the insurer’s coverage letters also identified nine other coverage issues, including the allocation clause and breach of the parties’ agreement.

E. The claims

Defendant has not yet issued a final decision as to coverage. The Court has summarized the parties’ positions, below, as to the individuals or entities which are insured, and the claims which are covered.

1. The claims originally presented to Indian Harbor, and Indian Harbor’s responses

As noted above, Plaintiffs sought coverage pursuant to the terms of the insurance Policy in February 2007, as to the RRGC Action, in June 2007, for the Shashy lawsuit, 95 and in May 2008, for the Green Claim. 96 Defendant *574 responded to each of the letters demanding coverage, and explained the bases for its “preliminary assessment of coverage” as to each matter, as described above. 97 The insurer objected to the claim for reimbursement of expenses incurred in prosecuting affirmative claims/counterclaims and, at least as early as November 13, 2007, requested that Miller, as counsel for MapleWood Partners and Glaser, contact the insurer, through counsel, “to discuss an appropriate allocation in light of the claims asserted against [MapleWood Holdings] (which is not an Insured under the Policy) and the counterclaim asserted by certain defendants (for which there is no coverage).” ECF No. 40-6. 98 The insurer’s letters responding to the demands for coverage also invited the insured to provide additional information as to the outstanding issues. 99

In October 100 and November 2007 101 , Miller responded to the insurer’s preliminary coverage letters as to the RRGC action and the Shashy matter. Miller noted that a settlement demand had been made in the Shashy matter, but that his clients had not yet responded to the demand. At some time in late November 2007, Miller also participated in a call with the insurer’s attorneys. ECF No. 107-4 (Nov. 30, 2007, e-mail to Indian Harbor from its outside counsel which references the call; the contents of this document are under seal).

Approximately three months after Miller received the insurer’s November 13, 2007 correspondence, which had invited Miller to discuss an appropriate allocation, the insurer notified Miller that Indian Harbor had consented to the retention of the Akerman Senterfitt and Kessler Collins law firms as defense counsel for the “Insureds” (described as MapleWood Partners, MapleWood Management, Glaser and Reale), and to the incurrence of Defense Expenses on their behalf, in the RRGC action and Shashy matter. ECF No. 89-3 (Feb. 4, 2008, letter from Simon to Miller). Indian Harbor advised Miller that it had no obligation to pay Defense Expenses under the Policy until the Retention had been satisfied, and that it would not pay expenses as to the pursuit of affirmative claims. ECF No. 89-3. In addition, the insurer noted that while Miller’s firm and the Kessler Collins firm also represented Maple-Wood Holdings, Julio Investors, Levitt, Glosson, Tillett, and Morris, the insurer did not consider those entities and individuals to be insured under the Policy, and an allocation would be required. Indian Harbor proposed a 50% allocation, i.e., it proposed to allocate 50% of the legal fees and expenses incurred by the law firms to the defense of the insureds, and the remainder to the defense of uninsured parties or the prosecution of affirmative claims. ECF No. 89-3. 102 According to Plaintiffs’ Supplemental Amended Complaint, Plaintiffs submitted a letter to the insurer on March 20, 2008, proposing a 70% allocation, instead of 50%, as to the interim funding agreement. ECF No. 100, ¶ 181. 103

Three weeks later, on April 11, 2008, the MapleWood entities, through Lumpkin, ad *575 vised Indian Harbor that the Shashy matter had settled. ECF No. 40-11. 104 (Indian Harbor and its counsel had attended the Shashy mediation, but had not been provided with a copy of the Insureds’ mediation statement, despite having requested the information. ECF No. 221-4.) 105 Lumpkin advised Indian Harbor that a total of $828,000 in attorneys’ fees had been incurred as of February 2008 (i.e., in the first eight months of litigation of the Shashy matter), by four law firms: Akerman Senterfitt, Kessler Collins, Parker Poe, and “Judge Cox’s firm” (Hughes & Luce). Id.

On April 18, 2008, Indian Harbor responded that it had only consented to the retention of two law firms as to the Insureds, and had not consented to the retention of the other two firms which were representing “Julio & Sons, which is not an Insured under the Policy.” ECF No. 221-4 (April 18, 2008, letter Simon to Lumpkin). The insurer also advised Lumpkin that questions remained outstanding as to the Shashy matter (e.g., the status of Glosson and his service on the board of Julio & Sons), and that the insurer had concluded that there was no coverage under the IAPL, and only limited coverage, if any, available under the IAML (only as to Maple Wood Partners) or IFMPL (as to Maple Wood Partners and Maple Wood Management, as well as Glaser and Glosson) parts of the Policy. Id. Indian Harbor noted that while it had offered to pay one-half of the charges incurred by the two approved law firms representing its insureds in the Shashy matter and RRGC action (not to include prosecution of affirmative claims 106 or representation of uninsured entities or individuals), it appeared that a lesser allocation might be appropriate. Id. 107

Notably, in its letter dated April 18, 2008, the insurer raised several requests for information from Lumpkin and his clients, including, inter alia, information regarding prior or pending litigation potentially related to the Shashy matter, and copies of correspondence or court filings in a matter brought by Julio & Sons against Travelers insurance company seeking coverage under an insurance policy as to the loss in connection with the Shashy matter. ECF No. 221-4. Indian Harbor referred Plaintiffs to the provision in the Policy stating that the Policy only covered losses in excess of what was covered by another insurance policy. GTC, General Conditions, (E).

On June 6, 2008, Indian Harbor responded to a letter written by Lumpkin on May 27, 2008 (a copy of which the Court has been unable to locate in the record), which purportedly stated that the insurer must make “ ‘immediate reimbursement’ in order ‘to avoid a litigated resolution.’ ” ECF No. 174-11 (June 6, 2008, letter Simon to Lumpkin). The insurer’s counsel wrote: “To be frank, we were somewhat surprised by these comments, given your failure to respond to our client’s [Indian Harbor’s] allocation proposal and to its specific questions regarding the defense arrangements for this Claim.” Id. Referencing the Policy’s allocation clause, the letter states: “In these circumstances, and in light of our client’s further assessment of coverage for these matters, we [are] prepared to advance 25% of the fees and expenses incurred by approved defense counsel in the Shashy and RRGC proceedings, subject to receipt of an executed Interim Funding Agreement.” ECF No. 174-11.

One week later, Indian Harbor advised Miller, on June 18, 2008, that the Green *576 action would be treated as a new Claim, “unrelated to any previously asserted Claims” in the Shashy matter, such that a separate Retention would apply, i.e., “coverage would be available, if at all, only to the extent that Loss incurred in connection with the Green Claim exceeds the $250,000 per Claim retention applicable to each of the potentially relevant Coverage Parts.” ECF No. 40-9. 108 Huber objected to this characterization of the Green claim, arguing that the claim was part of the same arbitration, involved the same parties, and arose out of the same or related facts, “i.e., the fallout from Julio Investors’ acquisition of Lucky Boy Corporation, now known as Julio & Sons.” ECF No. 40-12 (July 1, 2008, letter Huber to Simon). The insurer has not altered its conclusion as to this issue, and Plaintiffs’ claim for $68,000 in incurred defense expenses remains outstanding.

The parties’ correspondence reveals that they had reached a tentative agreement as to a 30% allocation in October 2008 — without limiting their rights to later seek a different allocation. “Indian Harbor believed that the parties actually had reached an agreement with regard to allocation, but Maple Wood Partners later reconsidered its position and rejected Indian Harbor’s offer.” ECF No. 40-14, at 9, 17. The Maple Wood entities offered to settle for $100,000 in exchange for a full release [fees and settlement amounts] as to the Shashy matter, and a 40% allocation “above the retention” toward the total defense fees as to the RRGC action and the Green claim, on the condition that the allocation would be “without prejudice to any of the parties’ seeking a greater or lesser allocation by judicial intervention or otherwise.” ECF No. 189-8, Sept. 9, 2008, e-mail Huber to Simon. The following month, Indian Harbor offered to pay the $100,000 to resolve the Shashy matter, and would pay 30% of the fees as to the RRGC action, but would require that the fees as to the Green claim be subject to a separate Retention. ECF No. 89-3. 109 Counsel for the parties exchanged a summary of the pending invoices for fees, and Plaintiffs’ counsel noted that “it seems we have an agreement in concept, just numbers need to be worked out — assume one deductible for Shashy/RRGC and one for Green,” ECF No. 189-9 (Oct. 23, 2008, e-mail Lumpkin to Wahl), but within a few hours the parties’ communication had deteriorated.

The Maple Wood entities demanded that the 30% allocation be applied after deducting the retention, ECF No. 189-6 (Oct. 23, 2008, e-mail from Huber to Simon), and Indian Harbor maintained that the 30% must be applied before applying the retention, ECF No. 189-10 (Oct. 23, 2008, e-mail Wahl to Huber). Counsel for the insurer wrote: ‘When [Huber and Lumpkin] called me this morning to indicate Maple Wood’s agreement to our counterproposal, I assumed that you actually had read the counterproposal, which could not have been more clear____Indeed, we even illustrated the proposal with reference to the precise figure Indian Harbor would be obligated to pay.” Id. In response, Huber wrote: “MapleWood is disappointed with Indian Harbor’s response.... Maple-Wood, which has spent more than a million dollars so far on defense, does not believe your current offer — which amounts to about 3 percent of that amount — is even in the ballpark.” ECF No. 189-11 (Oct. 24, 2008, email from Huber to Wahl). 110 A week later, *577 Huber’s colleague added that “MapleWood views your client as in breach of its obligations under the policy.” ECF No. 218-1 (Nov. 3, 2008, e-mail Lumpkin to Wahl, excerpts only). 111 In response, Indian Harbor asked for clarification as to the alleged breach, and copied Glaser; Lumpkin replied: “please do not communicate directly with the insured.” Id.

Ultimately, the insurer made an interim decision to provide funds and — approximately one month after the filing of this lawsuit challenging the (interim) coverage decision 112 —Indian Harbor produced a chart detailing its calculations as to “Undisputed Amounts.” ECF No. 40-14, at 26-31. Defendant advised Plaintiffs that, in light of the parties’ dispute as to what amounts of the total $1.3 million in reported defense costs constituted a covered Loss, Indian Harbor was obligated to pay only those Defense Expenses not in dispute, which it determined to be 25% of the claimed expenses, until such time as the parties could agree on an appropriate allocation of loss.

During a deposition of Defendant’s corporate representative, Plaintiffs’ counsel asked for an explanation of the decision to allocate exactly 25% of the claimed expense. Pidlak testified that “there is no specific mathematical formula contained in the policy with regard to the allocation provision” and instead the Policy “uses the best efforts language of the insured/insurer ... to determine a fair and reasonable allocation.” Pidlak Dep., at 66,185-86, 212, 289. 113 “I considered whether certain individuals and entities were insureds under the policy and whether they were sued in their capacity under various coverage parts. I also considered the types of claims that were being alleged against those entities or individuals to determine what an appropriate allocation under the policy would be.” Id., at 151. 114

In January 2009, Defendant tendered a check to counsel for Plaintiffs in the amount of $75,920.19, representing 25% of the total claimed defense costs, 115 after deducting the $250,000 retention amount pursuant to the Policy. ECF No. 40-13 (Jan. 27, 2009, letter from Cathy A. Simon to Michael F. Huber). 116 Additional payments were made on May 5 ($19,808.23), September 25, 2009 ($19,-130.23), January 8 ($25,732.23), June 11 ($13,-223.49), December 21, 2010 ($27,291.55), and June 6, 2011 ($66,362.32). ECF No. 174-17 (correspondence from insurer’s counsel, with checks and description of any deductions as to ineligible amounts for, e.g., “overhead” or unspecified “other travel expenses”). In summary, Defendant provided a total of $247,468.24 toward Defense Expenses as of June 2011. 117

*578

2. A summary of Plaintiffs’ claims, as currently stated, and Defendant’s interim decision on coverage

To summarize the Plaintiffs’ view (according to the complaint before this Court) of who was covered and as to what claims:

—MapleWood Partners and Glaser were covered as to all three types of coverage, and as to all three of the Underlying Matters;

—Tillett, Levitt, and Reale also were covered as to IAML and IAPL as to the Shashy matter, and Tillett and Levitt were covered as to the Green claim; and

—MapleWood Holdings and MapleWood Management were covered as to IAPL and IFMPL as to all three of the Underlying Matters.

ECF No. 100, ¶¶ 77-82 (IAML coverage), ¶¶ 87-90 (IAPL coverage), ¶¶ 99-103 (IFMPL coverage); see also, ¶ 129 (RRGC action), ¶ 151 (Shashy matter), ¶ 166 (Green claim).

While Plaintiffs do not specifically include Glosson and Morris in the listing of who is insured under the Policy, the complaint does reference these two men as having “incurred covered Loss and Defense Expenses, as those terms are defined by the Policy and applicable law,” as to the Shashy matter. ¶ 151. 118 And, although the complaint fails to identify an applicable coverage part of the Policy which specifically insured Julio Investors or Julio & Sons, Plaintiffs allege that the Julio entities and Glosson incurred covered losses as to the Underlying Matters. 119 Thus, the Court adds the following to the list of those described by Plaintiffs as covered under the Policy:

—Glosson, Julio Investors, and Julio & Sons (or Uncle Julio’s), 120 as to all three of the Underlying Matters; and

—Morris, as to the Shashy matter. 121

As to the three Underlying Matters, Plaintiffs claim defense expenses totaling $2,163,-000 — all of which was paid by Julio & Sons (or its insurer, Travelers 122 ), and seek an additional $2,500,000 for the amount of the RRGC settlement (including those amounts paid by Julio & Sons and its insurer) after deducting the $250,000 already paid by Defendant. The total amount of Plaintiffs’ demanded coverage, before applying the Retention or any allocation, is $4,663,000. In addition, Glaser testified that Plaintiffs had incurred $1,062,000 in “coverage action attorney’s fees” as of March 18, 2011. Glaser Dep. MapleWood, at 58,173.

To summarize the Defendant’s view of who was insured and as to what claims:

—MapleWood Partners as to IAML as to all three Underlying Matters, but not as to IFPL and IFMPL unless the RRGC and Shashy matter alleged “Wrongful Acts”; and

—Glaser and Glosson as to IFMPL coverage, and only as to the Shashy matter and Green claim to the extent that the com *579 plaints in those matters met other terms of the Policy.

On October 11, 2010, Defendant paid $250,000 to RRGC in settlement of the RRGC action. ECF No. 156-1 (Oct. 11, 2010, letter McNutt to Cox). When added to the amount paid for Defense Expenses, noted above, the full amount paid by Defendant pursuant to this Policy (and according to the record before the Court) was $497,468.24. The RRGC settlement amount remains an issue in dispute, as does the question of the defense fees for both the RRGC and Shashy actions; Plaintiffs also disagree with Defendant’s decision that the demand for defense fees as to the Green claim did not exceed the Policy’s Retention.

In addition, Defendant asserts that the Maple Wood entities “did not disclose to Indian Harbor the existence of the Indemnification Agreements or Julio & Sons’ obligation to indemnify the MapleWood Entities for all defense expenses and settlement amounts in the underlying actions until after this coverage action was brought.” ECF No. 149, at 4. 123 Not surprisingly, Indian Harbor has stated that it reserves its right to seek recovery of amounts it has already paid to Plaintiffs. ECF No. 149 at 7, n.7.

Given this extensive statement of the background facts and arguments, 124 the Court turns to the question presented in Plaintiffs’ motion: was this Court’s prior ruling in error or is the ruling in need of clarification? To answer this question requires a review of the basis for the Court’s ruling as to the parties’ discovery dispute.

III. ANALYSIS

In September 2011, after a review of the privilege log submitted by Plaintiffs (ECF No. 39-11), the parties’ briefs, the Order of Magistrate Judge Turnoff entered in March 2011, 125 and the controlling law, this Court issued an Order overruling Plaintiffs’ objections to the Magistrate Judge’s Order. This Court rejected Plaintiffs’ claim that all of the documents on the privilege log were privileged or protected from disclosure. Plaintiffs have challenged the Court’s determination, and argue that the Court misapplied the law, overlooked precedent, and relied on a “factually incorrect interpretation” of the parties’ relationships and the “admitted time line of events.”

Plaintiffs’ motion for reconsideration recites the factors, set out in Rule 60(b), Fed.R.Civ.P., which provide a basis upon which a court may relieve a party from the terms of the court’s order: a showing of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (2), and (6). Decisions as to reconsideration are, of course, left to the discretion of this Court, with the caution that reconsideration is an “extraordinary remedy to be employed sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1370 (S.D.Fla.2002). As this Court stated, many years ago, a “motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made____‘[and should not] ask the Court to rethink what the Court ... *580 already thought through — rightly or wrongly. ...'"Z.K. Marine, Inc. v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D.Fla.1992) (internal citation omitted).

Plaintiffs also have requested “clarification” of this Court’s Order, but their request for clarification instead seeks to avoid the Court’s explicit ruling that “all other documents” other than those “select few documents which contain the work-product of attorneys at Ver Ploeg & Lumpkin” prepared after January 1, 2008, should be produced to Defendant. 126 Thus, the Court has evaluated the Plaintiffs’ request for “clarification” under the principles applicable to a motion for reconsideration.

Before addressing the specific aspects of the discovery dispute, the Court restates, briefly, the issues in this litigation, as that will guide the analysis of whether the requested discovery is “relevant.” Plaintiffs complain that Defendant conducted a flawed analysis as to allocation (including making erroneous decisions as to who was insured and as to what claims), and misapplied the Retention provisions of the Policy. Defendant argues that its allocation decision and coverage determinations were consistent with the terms of the Policy, and its three coverage parts, based on the information available to the insurer at the time of those determinations, that it properly applied the Retention, and that it properly denied Plaintiffs’ claims seeking reimbursement for amounts already paid by another (i.e., the Travelers insurance payments to Julio & Sons for defense expenses in the RRGC action).

The Court also reminds the parties of the guiding principle that the “Federal Rules of Civil Procedure strongly favor full discovery whenever possible.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985). Discovery is permitted as to “any nonprivileged matter that is relevant to any party’s claim or defense,” even if the material sought would not be admissible at trial, as long as the discovery is “reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1).

A. Defendant’s discovery request, Plaintiffs’response, and judicial direction

The Defendant’s discovery request— served more than three years ago — sought from Plaintiffs (MapleWood Partners, Maple-Wood Management, and MapleWood Holdings):

3. All documents and communications between You and any of Your Agents, including but not limited to Brian Miller and/or other individuals at Akerman Senterfitt, LLP, and Michael F. Huber and Richard Hugh Lumpkin and/or other individuals at Ver Ploeg & Lumpkin, pertaining to the Underlying Matters.

4. All documents and communications pertaining to estimates, evaluations and/or assessments of your potential legal liability and/or settlement values in the Underlying Matters made by You and/or Your Agents.

ECF. No. 37 (Defendant’s memorandum in support of its motion to compel, quoting Defendant’s Second Set of Document Requests which had been served in December 2009) (emphasis added). In January 2010, Plaintiffs responded, apparently without providing any documents, see ECF No. 39-4, Exhibit 4 to Declaration of Steven W. McNutt. Plaintiffs stated that they would “produce any nonprivileged, nonimmune responsive documents,” id., 127 but asserted objections as to *581 other documents as protected by attorney-client privilege and work-product immunity.

The parties have offered a stipulation that January 1, 2008, is the first date on which the parties anticipated that litigation was forthcoming. In other words, the parties agree that documents created on or after that date “that otherwise qualify as trial preparation materials under the applicable rules” are not subject to production in this case. ECF No. 107-3 (Jan. 5, 2010, e-mail Huber to McNutt). The parties’ agreement envisioned that “responsive non-privileged and nonprotected documents prepared after January 1, 2008, such as correspondence between the Parties and materials from the underlying RRGC litigation” would be produced. Id. (emphasis added).

Despite this stipulation, it appears that the production of documents by Plaintiffs, including their privilege log, was less than swift or efficient. For example, in June 2010, Plaintiffs’ counsel indicated that there were no documents responsive to Request No. 3 that were prepared in 2007, as the firm of Ver Ploeg & Lumpkin was not retained until late February 2008, and the firm of Akerman Senterfitt already had produced the responsive documents. ECF No. 39-7 (emphasis added). However, approximately 250 documents prepared in 2007 are included in the privilege log presently before the Court. Also, Plaintiffs previously had indicated that they would be producing additional documents responsive to Request No. 4, but it is unclear whether that occurred. According to Defendant:

Plaintiffs produced a CD containing over 12,000 pages of documents described as “MapleWood’s revised document production,” which purported to replace entirely MapleWood’s seven earlier document productions. The only explanation Plaintiffs offered for this change was to “correct numbering errors” in previous productions. Based on a preliminary review of the revised production, however, we note that there were changes far beyond correcting simply numbering errors. Accordingly, Indian Harbor has been required to spend considerable time and expense (in excess of forty (40) hours of attorney and paralegal time) attempting to discern what changes Plaintiffs, in fact, made in their document productions.

First, it appears that numerous new documents, which had not previously been produced to Indian Harbor, have been sprinkled throughout the production. See, e.g., MPW 7748, 7920, 8313, 9700. Plaintiffs provided no notice to Indian Harbor by letter or Bates number that Plaintiffs were interspersing new documents throughout their substitute production.

Further, documents previously produced to Indian Harbor appear to have been removed from the substitute production— again with no notice or explanation to Indian Harbor. See, e.g., MAN 9622, MAN 9624. Exactly what has been removed, as opposed to what has been moved around in the revised production, is difficult to tell as some documents have been renumbered out of the order in which they originally were produced. See, e.g., MPW 2976 (previously produced as MPN2978), and MPW 7505 (previously produced as MAN 7524). Compounding the complexity of ascertaining all of Plaintiffs’ changes to their various productions, scores of new documents have been added to Plaintiffs’ most recent substitute privilege log. These newly added privilege log entries do not come at the end of Plaintiffs’ revised log, but, rather, are mixed throughout the hundreds of log entries. Accordingly, these new entries do not appear to represent newly discovered documents, but, instead, are documents that Plaintiffs intentionally removed from their previous productions (leaving numbering gaps in their previous productions) and failed to identify on previous privilege logs. Again, Plaintiffs provided no notice or explanation for the wholesale rejiggering of their privilege log.

ECF No. 39-8 (July 28, 2010, letter Gere to Huber). As late as August 2010, Plaintiffs were still “in the process of logging all privileged communications between Akerman and MapleWood concerning the Underlying Matters in its log.” ECF No. 39-10. The Court observes that this appears to be an unjustifiably delayed response to discovery requests initially served in November 2009.

In November 2010, Plaintiffs provided a final version 128 of their privilege log, totaling *582 104 pages and listing more than 700 documents, spanning a time period of October 2003 to August 2010. ECF No. 39-11 (submitted with Declaration of Steven W. McNutt, in support of Defendant’s Motion to Compel). (Local Rule 26.1(g) describes the procedure for counsel to follow when asserting privilege as a reason for not producing requested materials, and specifies that sufficient information must be provided to identify the withheld materials. 129 As a court often relies on counsel’s representations made in the privilege log when reviewing the basis for the asserted privileges, the preparation of the log must be given serious attention by counsel.)

In response to Plaintiffs’ objections, Defendant filed a motion to compel, specifically seeking documents reflecting Plaintiffs’ “communications with defense counsel, Akerman Senterfitt, LLP, regarding three underlying legal actions brought against Plaintiffs for which they seek reimbursement of indemnity and defense expenses from Indian Harbor.” ECF No. 36. Magistrate Judge Turnoff heard argument on the Defendant’s motion to compel and, in March 2011, entered an order granting the motion. ECF No. 64 (Order, Hon. William C. Turnoff). Plaintiffs then filed objections to the Order, and asked this Court to find that the documents were protected by attorney-client privilege and were immune from production as opinion work-product.

This Court’s Order entered in September 2011 overruled Plaintiffs’ objections to Magistrate Judge Turnoffs Order, and invited Plaintiffs to submit those documents “which contain the work-product of attorneys at Ver Ploeg & Lumpkin” for in camera review (the Court suggested several documents identified in the privilege log which appeared to be in that category). 130 Plaintiffs also were ordered to turn over all other documents, which they have not yet done.

Plaintiffs subsequently submitted a total of 28 documents which they claimed “contain discussions as to coverage and the work-product of attorneys at Ver Ploeg & Lump-kin.” ECF No. 222 (September 19, 2011, notice of submission of documents, filed under seal). None of the submitted documents are those documents specifically identified by the Court, i.e., Plaintiffs apparently do not assert that those documents previously identified by the Court, or any other documents in the privilege log other than the 28 documents submitted for review, contain the opinion work-product of attorneys at Ver Ploeg & Lumpkin. 131

Plaintiffs have asked this Court to reconsider its decision to overrule Plaintiffs’ objections to Magistrate Judge Turnoffs Order. To address Plaintiffs’ request, the Court sets forth the legal standards governing whether communications and documents are protected by the attorney-client privilege or work-product immunity. The analysis, below, expands on the analysis provided in the Court’s Order of September 2011, ECF No. 187, at 3-18.

B. Attorney-client privilege

The attorney-client privilege has long been understood to protect from compelled disclosure those confidential communications between a client 132 and the client’s *583 attorney made for the purpose of obtaining or rendering legal advice. The rationale for such privilege is that it encourages clients to fully and completely disclose information to their attorneys in order to allow the attorneys to provide competent legal advice or advocacy, and “thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981). Because application of the attorney-client privilege obstructs the truth-seeking process, it must be narrowly construed. 133 “[Tjestimonial exclusionary rules and privileges contravene the fundamental principle that the public ... has a right to every man’s evidence,” and therefore must be “strictly construed.” Univ. of Pa. v. EEOC, 493 U.S. 182, 189 , 110 S.Ct. 577 , 107 L.Ed.2d 571 (1990) (internal quotations and citations omitted). 134

As stated in this Court’s previous Order, Federal Rule of Evidence 501 directs that this Court look to Florida law as to the attorney-client privilege. Florida Statutes section 90.502 provides, in relevant part: 135

(l)(b) A “client” is any person, ... or other organization or entity who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer.

(c) A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:

1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.

2. Those reasonably necessary for the transmission of the communication.

(2) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.

Fla. Stat. § 90.502 (1), (2). 136 The attorney-client privilege is far from absolute. For example, at least one court has found that the failure to assert the privilege in a timely manner constituted waiver of the privilege, Rynd v. Nationwide Mut. Fire Ins. Co., 2010 WL 5161838 , 2010 U.S. Dist. LEXIS 136626 (M.D.Fla. Dec. 14, 2010) (applying federal procedural law in a diversity action and finding that an untimely assertion of attorney-client privilege constituted a waiver). 137

1. Burden of proof as to applicability of the attorney-client privilege

The burden of demonstrating that a privilege applies to a particular communication, i.e., that the confidentiality of the communication is more important than the public interest in transparency, is on the proponent of the privilege. United States v. *584 Noriega, 917 F.2d 1543 , 1550 (11th Cir.1990) (denying request to stay enforcement of court order forbidding publication of a conversation between client and counsel). The proponent must establish the existence of the privilege by a preponderance of the evidence. Daubert v. Merrell Dow Pharms., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (matters of preliminary questions, identified in Fed.R.Evid. 104(a), are to be established by a “preponderance of proof,” citing Bourjaily v. United States, 483 U.S. 171, 175-76 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987)).

The client, who is the holder of the privilege, XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 585-86 (Fla. 1st DCA 2006), also may waive the privilege voluntarily. For example, waiver can be found by voluntary disclosure, Fla. Stat. § 90.507 , 138 as disclosure is inconsistent with the confidentiality requirement of purportedly privileged communications. 139 In the event of such waiver, the communications are no longer protected by the privilege. An attorney is entitled to assert the privilege on her client’s behalf, and — absent contrary evidence — is presumed to have the authority to do so, Fla. Stat. § 90.502 (3)(e), but after the client waives the privilege it is no longer available for assertion by the attorney.

A party seeking to pierce the privilege need only establish a prima facie case that the client’s privilege was waived. 140 If a waiver has been sufficiently alleged, the party seeking the benefit of the privilege must establish — by a preponderance of the evidence — that the privilege was not waived, as the burden always rests in the final analysis with the party seeking the protection of the privilege. 141

Federal courts in Florida sitting in diversity (and, therefore, applying Florida law as to privilege, and referring to federal law only for procedural questions) have rejected blanket claims of attorney-client privilege and have required that specific detail as to the content of documents and their authors and recipients be provided in order to permit meaningful judicial review of the asserted privilege. See, e.g., Commercial Long Trading Corp. v. Scottsdale Ins. Co., 2012 WL 6850675 , 2012 U.S. Dist. LEXIS 184885 (S.D.Fla. Dec. 26, 2012) (mere assertion of privilege is insufficient to meet the burden); St. Joe Co. v. Liberty Mutual Ins. Co., 2006 WL 3391208 , 2006 U.S. Dist. LEXIS 85260 (M.D.Fla. Nov. 22, 2006) (applying Florida privilege law to find that proponent of privilege failed to meet burden); see, also, CSX Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421 , 1995 U.S. Dist. LEXIS 22359 (M.D.Fla. July 20, 1995) (conelusory descriptions in a privilege log do not sufficiently establish the elements of the attorney-client privilege). In each of the cited cases, above, the court permitted the party an additional attempt to establish the existence of a privilege.

A review of these decisions demonstrates that — at least in the federal courts — a party

*585 does not satisfy its burden of proving that a privilege applies by merely asserting a privilege. Nor does a party satisfy its burden by simply asking that the court conduct an in camera review of documents which the party hopes to keep confidential — instead, the party first must present some evidence to convince the court that the privilege might apply. 142 In contrast, Florida appellate courts have imposed a burden on the state trial courts to conduct in camera review upon a very minimal showing by the proponent of the privilege, and have reversed decisions in which such review was not conducted. “On its face, [the discovery] request required disclosure of attorney-client communications. Therefore, the trial court should not have ordered production of these communications without first conducting an in-camera inspection thereof.” Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (although no privilege log was filed by the proponent of the privilege, in camera judicial review was required before disclosing documents reflecting communications with attorneys). 143 See, also, Alliant Ins. Servs., Inc. v. Riemer Ins. Group, 22 So.3d 779, 781 (Fla. 4th DCA 2009) (“party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure”); 144 but see TIG Ins. Corp. v. Johnson, 799 So.2d 339, 342 (Fla. 4th DCA 2001) (refusing to reverse lower court’s determination that insurer’s failure to prepare privilege log resulted in waiver of attorney-client privilege).

In an attempt to meet their burden of establishing that they are entitled to withhold relevant material from production pursuant to an attorney-client privilege (and, also, work-product immunity, discussed below), Plaintiffs have produced a privilege log, as noted above. The log provides a Bates number for each document or set of documents, the date of the doeument(s), a very brief description of the document(s) (including a statement as to whether material was redacted therefrom), and the asserted privilege. Plaintiffs have not provided affidavits of Miller or others indicating that any of the documents are, indeed, protected by the attorney-client privilege, nor have Plaintiffs identified the relationships of the multiple individuals whose names appear in the privilege log. 145

As an initial matter, and because the parties do not agree as to the answer, the Court addresses the question of who is the client on whose behalf the privilege is being asserted and as to what communications. The Court then will address the question of whether the requisite confidentiality was present such that these communications might be protected by the attorney-client privilege.

2. The “clients” and, the communications

Plaintiffs, three corporate entities, have asserted claims of attorney-client privilege as *586 to communications with Miller and other attorneys at Akerman Senterfitt. 146 Intervenors also have asserted that they hold the attorney-client privilege as to these same communications, as “joint clients” of Miller and his law firm. Plaintiffs argue that the documents and evidence of communications listed on the privilege log reveal legal advice which had been provided not only to Maple-Wood Partners (the Named Insured in the Policy), but also to the other two Plaintiffs: MapleWood Management and MapleWood Holdings, and to the Intervenors: Glaser, Reale, Levitt, Tillet, Morris, Glosson, and Dell. EOF No. 259 (Intervenors’ reply in support of Plaintiffs’ motion for reconsideration). ‘

3. Intervenors, as corporate representatives, do not have an independent right to assert an attorney-client privilege as to corporate communications with Miller

As an initial matter, the Court rejects the Intervenors’ implied argument 147 that they are entitled to assert an individual attorney-client privilege as to communications between MapleWood Partners and its counsel. Intervenors have described themselves as “actual joint clients” of Miller, but they have not established that they obtained legal advice as to the Underlying Matters in a distinctly individual, rather than representative, capacity, or that their communications with Miller related to something other than their duties with respect to the MapleWood entities and, thus, any privilege they may have is within the same community of interest as the attorney-client privilege possessed by Plaintiffs. 148

Six of the Intervenors (Glaser, Levitt, Tillett, Morris, Reale and Glosson) were named as defendants, along with the MapleWood and Julio entities, in the Shashy lawsuit. Several months after the Shashy suit was filed, Miller apparently discussed with Glaser the question of legal representation of these individuals. 149 The record reflects that on *587 only a very few occasions thereafter did Glosson, Morris or Reale communicate with Miller outside the presence of Glaser. 150 Plaintiffs have described the Intervenors as insureds 151 and representatives of Plaintiffs; these individuals apparently were not in need of independent counsel, 152 and were united in all respects with the MapleWood entities as to the Underlying Matters. 153 In light of this record, the Court finds that the Intervenors did not have a reasonable belief 154 that they were consulting Miller as their own independent attorney.

Even if the Intervenors are viewed as shareholders, and not as representatives (as officers or directors) of the MapleWood entities/insureds, 155 the Court’s conclusion that they possess no attorney-client privilege independent of the entity’s privilege would not change. In Omega Consulting Grp. Inc. v. Templeton, 805 So.2d 1058 (Fla. 4th DCA 2002), a Florida appellate court reviewed a lower court’s order which required disclosure of corporate e-mail communications in a shareholder’s derivative action brought by a 50% shareholder in the two subject corporations, alleging misappropriation of corporate assets by the other 50% shareholder. The trial court had rejected the corporations’ claim that the communications were protected by the attorney-client privilege, and the appellate court approved of that determination, noting that the situation was “closely analogous to the situation ‘in which the same *588 attorney acts for two or more parties having a common interest [and] neither party may exercise the privilege in a subsequent controversy with the other.’ ” Id., at 1060 . In other words, the corporation and the shareholder, although adversaries and represented by opposing counsel at the time, could not be denied access to communications to which they arguably would have been entitled to access in an earlier context. 156

The court in Omega Consulting noted that “the corporation might successfully assert the attorney-client privilege against a stockholder under some circumstances,” id. at 1059-60 , and referenced the seminal decision in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir.1970). 157 In Garner , the Court of Appeals for the Fifth Circuit announced the “neither new nor world-shaking” proposition that:

The corporation is not barred from asserting [the attorney-client privilege] merely because those demanding information enjoy the status of stockholders. But where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance.

Id. at 1103-04 . Thus, applying the reasoning of the Gamer decision, if the MapleWood entities and their shareholders were to become adversaries in an action, any claim of privilege asserted by the entities would be subject to the shareholders’ ability to show cause why the privilege should be not be invoked. This example illustrates that Intervenors’ attorney-client privilege is dependent upon the privilege possessed by the Maple-Wood entities, and also that the privilege is not absolute. 158

In summary, to the extent that Miller (and his law firm and team of colleagues) represented any of the Intervenors it was only in the Intervenors’ role as corporate representatives of the MapleWood entities, 159 and the Court finds that all of those entries in the privilege log involving Glaser or any Intervenor and any of the attorneys from the Miller-led defense team are communications which fall within the same attorney-client privilege shared among Plaintiffs.

Ip. The Julio entities and their directors or employees are clients of Miller’s team

As a secondary matter, the Court returns to the question of the relationship between the Plaintiffs and Julio & Sons. As the Court concluded, above, there is no relevant difference between Plaintiffs and Julio Investors, nor Julio & Sons, as to the discovery issue before the Court today, as the same individual or individuals controlled the company and the entities’ interests were aligned for all relevant purposes. 160 When Glaser was deposed in this case he attempted to make jokes regarding his “multiple roles” with re *589 speet to the MapleWood and Julio’s entities. Glaser Dep. Julio’s, ECF No. 153-3, at 4. “So when I sat there listening, I wasn’t able to differentiate whether I was listening for Julio or for MapleWood at times. But if any formal decisions were taken, they were taken in a formal capacity role.” Id. Glaser’s bold pronouncement is consistent with this Court’s finding that Glaser was the controlling voice of the MapleWood and Julio’s entities. 161

Any communications between Plaintiffs (and their attorneys) and the Julio entities or their attorneys were made in relation to the Plaintiffs’ defense of the Underlying Matters and, in light of the record of unified control exerted by Glaser over all of these entities, 162 the Court finds that such communications fall within the same shared attorney-client communications for the purposes of a privilege analysis, i.e., the Julio entities do not possess an independent privilege which can be asserted in this matter as to these communications and, instead, are considered to be a co-client, with Plaintiffs and Intervenors, of Miller’s team. 163

In light of the above, the Court finds that any entries in the privilege log which include representatives of the Julio entities (e.g., Steve Bratten 164 ), or counsel for those entities (i.e., Adams or Cox, and their respective law firms), will be considered as within the shared attorney-client privilege. In other words, these communications with the Julio entities represent communications with a client who possessed no independent attorney-client privilege but instead was Miller’s client along with Plaintiffs and the Intervenors and, therefore, was subject to a shared privilege as co-clients.

5. Glaser was the controlling voice of the clients

The application of attorney-client privilege to corporate entities requires a determination of whether the communication at issue was between the corporate client-represented in all cases by an individual, whether they be an officer, manager, or employee-and the corporation’s counsel. 165 In Upjohn, the United States Supreme Court rejected a “control group” approach to the determina *590 tion of which level of employee might be considered as a representative of the client for the purposes of privilege assertions, 166 but did not articulate an alternative standard. Upjohn, 449 U.S. at 396 , 101 S.Ct. 677 (internal corporate investigation revealed improper payments made to foreign officials, corporation properly asserted attorney-client privilege as to employee’s statements to its attorney during the internal investigation). 167 The Supreme Court focused on the function of the privilege, i.e., to encourage the communication of relevant information by employees of the client to those attorneys rendering legal advice to the client — thereby promoting “compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders” as well as effective judicial administration. Id., at 394 , 101 S.Ct. 677 .

In a particularly significant decision announced after Upjohn , the Supreme Court of Florida applied a heightened level of scrutiny to claims of corporate privilege in order “to minimize the threat of corporations cloaking information with the attorney-client privilege in order to avoid discovery.” Southern Bell Telephone and Telegraph Co. v. Deason, 632 So.2d 1377, 1383 (Fla.1994) (reports of internal audits conducted at the direction of counsel were not privileged — but were protected as fact work-product). The decision in Deason provides clear guidance on this issue, 168 setting forth five factors to determine whether a corporation’s communications are protected by the attorney-client privilege:

1. the communication “would not have been made but for the contemplation of legal services”;

2. employee making the communication did so at the direction of his or her corporate superior;

3. the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;

4. the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties, and

5. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Deason, 632 So.2d at 1383 . The court in Deason held that employee statements made directly to corporate counsel during the internal audits were privileged such that managers in human resources department were not required to divulge communications from corporate counsel regarding those employees’ earlier statements, but the reports which summarized those statements were not attorney-client privileged. 169

*591 An attorney representing a corporate entity often must gather facts through communications to and from the entity’s employees, regardless of the employees’ decision-making status with the entity; the Deason factors assure that courts will not apply privilege protections broadly and instead will focus on those communications which were made confidentially, with authority and in order to obtain legal advice for the corporate entity’s use. 170 This interpretation of attorney-client privilege as applied to corporations represents a functionally practical approach to what are often complicated questions. 171

As an artificial construct, a corporation cannot speak, nor can it waive its own attorney-client privilege — each of these actions is taken by individuals empowered to act on behalf of the corporation. Such empowered individuals must act in a manner consistent with their fiduciary duty to act in the best interests of the corporation and not in service of their personal interests. Rogan v. Oliver, 110 So.3d 980, 983-84 (Fla. 2d DCA 2013) (former officer of homeowner’s association could not assert or waive the association’s attorney-client privilege), citing Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348-49 , 105 S.Ct. 1986 , 85 L.Ed.2d 372 (1985) (quotations omitted).

In the present case, it is easy to identify Glaser as the lead voice of the Plaintiffs due to his ownership interests and control. 172 Others also may have represented Plaintiffs (and the Julio’s entities) in privileged communications with the entities’ attorneys, to the extent that such person had the requisite authority, according to Deason , and the other elements of privilege were met. Any e-mails or communications other than Glaser’s must be shown to have been sent at the direction of a “superior” at the entity, and be within the scope of the sender’s duties for the entity, and not distributed beyond the list of persons who needed to know the information. Deason, 632 So.2d at 1383 .

For example, there is an entry in the log which refers to correspondence between MapleWood Partners’ employee Ronald Augustine (or Augustin) and an attorney at Akerman Senterfitt, see EOF No. 39-11, at Bates 16260. 173 Although Plaintiffs did not address this point, the Court finds that Augustine’s *592 (and other MapleWood Partners’ employees’) communications with Akerman Senterfitt may be considered to be within the scope of the corporate clients’ attorney-client privilege if all other elements of privilege are present (e.g., the communication would not have been made “but for” the provision of legal services, etc.). 174

6. The content of the communications must relate to the obtaining or providing of legal advice and the communications must have been made in confidence

A review of Plaintiffs’ privilege log reveals that many of the withheld materials do not meet the test of Fla. Stat. § 90.502 , or the Deason factors. Plaintiffs have failed to offer evidence that all of these allegedly privileged communications were from an agent of Plaintiffs to or from Akerman Senterfitt attorneys 175 specifically for the primary purpose of seeking legal advice, i.e., the communication would not have been made “but for” the contemplation of legal services. Deason , 632 So.2d at 138S. 176 Plaintiffs bear the burden of establishing, by a preponderance of the evidence, that the privilege applies, and generally have failed to do so.

For example, disclosure to an adverse party eliminates the basis for an assertion of privilege under either statutory or common law. Plaintiffs’ privilege log includes 85 entries which reflect correspondence with an adverse party or its counsel (e.g., individuals related to RRGC, or Shashy or Green, and their attorneys); none of these documents-approximately 10% of the total documents included in the log-are protected by attorney-client privilege. 177 To the extent that other materials in the privilege log are communications which included an unknown party, the Court finds that such documents also are not protected by the attorney-client privilege. Plaintiffs failed to indicate any confidential or privileged nature of the these unknown persons’ relationship to Plaintiffs and, despite this Court’s extensive review of the record, the Court was unable to identify the role of 47 names of individuals who appear in the privilege log in a total of 71 documents. The Court has prepared a “Directory” of all relevant names, which is included at the end of this Order. Thus, the Court finds that Plaintiffs have failed to demonstrate that any *593 communications involving those unidentified persons were made with the necessary confidentiality to qualify for privileged protection. 178

In Defendant’s original discovery demand, Plaintiffs were asked to produce “all” documents and communications relating to the Underlying Matters — there was no qualifier that the request sought only those communications related to legal advice. Similarly, Defendant’s motion to compel sought all “communications with defense counsel” regarding the Underlying Matters. Presumably, Plaintiffs would have produced responsive documents relating to non-privileged communications, and only asserted privilege as to those communications relating to legal advice; however, a review of the privilege log reveals that Plaintiffs have included many items as to which the descriptions do not indicate that the communications had the primary purpose of seeking or providing legal advice.

For example, the Court notes that approximately two dozen entries in the privilege log are related to invoices or billing, 179 or scheduling, 180 or service of process 181 and, as such, evidently were not communications made for the purpose of legal advice (i.e., these specific communications arguably would have been made even absent the provision of legal advice). 182 In any event, the Court need not go through the nearly 800 documents in the privilege log in further detail at this time in light of the Court’s conclusion, discussed below, that categorical production is required.

In summary, the “clients” as to whom privilege is being asserted are the Plaintiffs, the purported insureds, 183 along with their co-clients, the MapleWood entities and individuals identified above as having identical interests, and the Julio entities and individuals with an identical interest 184 — and they all shared an attorney-client privilege as to the defense of the Underlying Matters. As to the communications which Plaintiffs seek to withhold, the Court finds that Plaintiffs have failed to demonstrate that all of the hundreds of documents included in the privilege log were for the primary purpose of seeking legal advice, i.e., would not have been made “but for” the purpose of obtaining or providing legal services to defend the clients in the Underlying Matters. 185 Those documents which do not meet the definition of privilege are identified in the “Chart” at the end of this Order and shall be disclosed immediately to Defendant. In addition, as to those few remaining documents which do appear to have been communications for the purpose of legal services, such items are subject to an attorney-client privilege only if all of the *594 other elements of the privilege are present, as discussed below.

7. Confidentiality in “common” with others

The confidentiality element of the attorney-client privilege can be viewed as a limit on the scope of the privilege, i.e., the privilege does not extend past the boundary within which the attorney and client maintain confidentiality in common. Two doctrines protect from disclosure those items as to which a court might otherwise conclude that the privilege had been waived by a failure to maintain confidentiality: the “joint client” and the “common legal interest” doctrines. These two doctrines are distinct and do not overlap. 186

The joint client doctrine simply recognizes that the attorney client privilege can apply to joint clients of the same attorney, in the same litigation. The doctrine provides that disclosure by a client or her attorney, which otherwise might constitute a waiver of the attorney-client privilege, is not considered a waiver if the disclosure is made to a co-client of that attorney. For example, as discussed, supra, the Intervenors and Plaintiffs are co-clients of Miller’s legal team. There is no need to evaluate whether the legal interests of such co-clients are in common or aligned because the clients are joint clients of a single attorney 187 and are entitled, jointly, to a continuing attorney-client privilege. According to Florida law, there is no attorney-client privilege protecting from disclosure those communications made to a co-client when the clients later are in litigation as adversaries.

There is no lawyer-client privilege under this section when ... a communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.

Fla. Stat. § 90.502 (4)(e) (emphasis added). 188

In comparison, the common legal interest doctrine considers parties with separate counsel to nevertheless be aligned for the purposes of a privilege analysis when those parties have legal interests which are allied, as long as the parties’ communications were with a lawyer “consulted in common.” Fla. Stat. § 90.502 (4)(e). 189 The common legal interest doctrine, which was codified in the Florida Statutes in 1992, recognizes that there are certain limited circumstances in which the parties’ sharing of otherwise privileged communications advances the policy behind the privilege. 190

8. Joint clients of the same attorney

Plaintiffs (and the related MapleWood entities, Julio’s entities, and Intervenors) all are *595 joint clients of Miller and his legal team and, therefore, shared an attorney-client privilege with all the benefits and responsibilities that accompany the privilege. The Court now must address whether the insurer was also a joint client of Miller during the defense of the Underlying Matters, such that the insurer is entitled to access the otherwise privileged communications of Plaintiffs. 191 “As a general matter, no co-client is entitled to have a lawyer withhold material information from another. There is no reason to make insurance defense representations an exception to this rule.” Ellen S. Pryor and Charles Silver, “Defense Lawyers’ Professional Responsibilities: Part II — Contested Coverage Cases,” 15 Geo. J. Legal Ethics 29 , 86 (2001) (citations and notes omitted).

The Supreme Court of Florida has not addressed the question of what duty is owed to the insurer by an insured’s hired attorney when defense expenses are being indemnified by the insurer. However, The Florida Bar has adopted Rule 4-1.7(e), regarding the representation of insureds in such circumstances.

A lawyer must inform clients of the scope of representation “upon undertaking” the representation of an insured client at the expense of the insurer, and ascertain whether the attorney will be representing both the insurer and the insured as clients or only the insured.

The Comment to this Rule notes that there is a “unique tripartite relationship of insured, insurer, and lawyer.” 192 Further, Ethics Opinion 97-1, issued by The Florida Bar and available at www.floridabar.org (last visited June 9, 2013), provides that if interests diverge, and would adversely affect the attorney’s representation of the client insured, the attorney must withdraw and must act in the best interest of the insured. Op. 97-1, The Florida Bar. 193 “As long as the representation continues, the attorney’s primary duty is to the insured.” Id, The Ethics Opinion specifically does not state that the attorney’s “sole” duty is to the insured and, as such, can be interpreted as recognizing that the attorney’s secondary duty is to the insurer.

A number of courts have found that the interests of an insurer providing defense coverage essentially merge with the interests of its insured being defended. In other words, the insurer becomes the third-party beneficiary of the relationship between the insured and the attorney hired (by the insurer) to represent the insured. 194 “The majority of jurisdictions to decide the issue ... have *596 concluded that the insurer is in privity of contract with the attorney hired to represent insured individuals or is a third-party beneficiary of the relationship between the attorney and the insured.” Hartford Ins. Co. of the Midwest v. Koeppel, 629 F.Supp.2d 1293, 1298-99 (M.D.Fla.2009) (collecting cases).

The principle animating the rule that an insurer and its insured, because they are aligned as to the defense of claims brought against the insured, share an attorney-client privilege has been the law in Florida for more than one hundred years. “It is doubtless the law that where an attorney represents both, or all the parties in a transaction, that conversations and transactions between such parties in the presence of the attorney and each other are not privileged conversations.” Dominguez v. Citizens’ Bank & Trust Co., 62 Fla. 148 , 56 So. 682 , 683 (1911) (affirming trial court order prohibiting attorney for bank from testifying as to what opposing party said, as opposing party had consulted same attorney in confidence before filing suit against the bank). 195

“If the representation was joint, ... defendants possess no information as to which plaintiff could have had any expectation of privacy in relation to the defendants.” Brennan’s, Inc. v. Brennan’s Rests., Inc., 590 F.2d 168, 173 (5th Cir.1979) (joint representation of family members who mutually owned corporation required disqualification of attorney in subsequent dispute with remaining family members, but information learned by that attorney was not privileged). 196 The court observed that parties to a prior joint representation agreement are not entitled to assert attorney-client privilege offensively against each other as to the matters included in that joint representation if the parties are in a subsequent dispute, but they are free to assert the privilege as to outsiders. Id. at 172 . For example, in this case if RRGC sought access to privileged materials that had been shared between MapleWood Partners and Indian Harbor (e.g., the Pre-trial Report prepared by Miller), presumably both the insured and the insurer would stand together in opposition to RRGC’s request. 197

The record before the Court clearly demonstrates that Plaintiffs, through Glaser and through the Miller-led team of attorneys, intended to, and did, share information with Indian Harbor, including information which was described as attorney-client privileged. The strongest evidence that the parties shared a status as clients of Miller is found in his February 2010 preparation, at Defendant’s request and with Plaintiffs’ approval, of the Pre-trial Report in the RRGC case. The Report, paid for directly by Defendant, included Miller’s assessment of the major issues at trial, key evidence/witnesses, competing expert opinions, potential liability, and damages or settlement value of the case. Indeed, the seven-page Report is marked “Privileged and Confidential Attorney Work- *597 product Protected” and was provided to Defendant. (The report remains under seal in the Court’s file, at ECF No. 39-1). Several months earlier, Miller had provided Defendant with a detailed trial budget for the RRGC litigation, the budget also is marked “Privileged and Confidential Attorney Work-product Protected.” (The budget is under seal in the Court’s file, at ECF No. 39-2.)

Miller also provided status updates regarding the RRGC litigation “when requested and when something material took place in the litigation,” and had multiple conversations with the insurer’s counsel regarding expert reports assessing damages in the RRGC action. Miller Dep., at 96, 99-100, 108. At his deposition in this case, Miller recalled “discussing the expert reports and conclusions and damages analysis with Mr. McNutt [counsel for Indian Harbor] on several occasions.” Id., at 112. There is no evidence that Miller obtained a waiver from his clients permitting him to have these conversations without waiving any attorney-client privilege, or that Miller (or his clients) objected to these conversations taking place. Indeed, Plaintiffs knew that the detailed Report had been requested by Indian Harbor and, while Plaintiffs objected to paying for Miller’s time to prepare the Report in light of the ongoing coverage-related litigation, id., Plaintiffs apparently did not raise any objection to the Report being provided. Such evidence of full cooperation by Miller with the insurer is expected to be found here, as the Policy requires cooperation by the insured, and prohibits the insured from admitting liability or settling a claim without the insurer’s consent. 198 Moreover, the Policy imposes a duty, which Plaintiffs accepted in purchasing the Policy, that the insured will “provide the Insurer with all information, assistance and cooperation that the Insurer may reasonably request.” Id., (I)(l).

It is clear that Miller and his team of attorneys represented Plaintiffs (and Intervenors), and also that Miller performed at least one piece of litigation work directly for Indian Harbor in addition to communicating openly — without evidence of conflict or objection from his MapleWood entity-related clients — with the insurer. Thus, to at least a certain extent, Miller also represented the interests of the insurer. Despite the inherent tension in such situations, Florida’s law on professional responsibility, and Florida caselaw interpreting such responsibilities in the context of insurance disputes, recognize that counsel will act appropriately under such circumstances. 199 An attorney may refuse to disclose matters told to her in private by the insured, in the absence of the insurer, if there was an expectation of privacy. The shared attorney-client privilege extends only to those matters addressed jointly among the clients and counsel. The Rules Regulating The Florida Bar provide that:

When a lawyer undertakes the defense of an insured ..., at the expense of an insurance company, in regard to an action or claim for personal injury or for property damages, or for death or loss of services resulting from personal injuries based upon tortuous conduct, including product liability claims, the Statement of Insured Client’s Rights shall be provided to the insured at the commencement of the representation.

Fla. Bar. R. 4 — 1.8(j). 200 There is no evidence before the Court that the Plaintiffs (or any of the Intervenors) ever objected to dis *598 closures made by Miller to Indian Harbor prior to the initiation of this lawsuit. 201

Judge Daniel Pearson, writing the opinion in Visual Scene, Inc. v. Pilkington Brothers, plc, 508 So.2d 437, 442 (Fla. 3d DCA 1987), noted that:

in deciding whether shared information should be protected from disclosure to the third party, one must first answer the questions whether the communication was ‘made and maintained in confidence under circumstances where it is reasonable to assume that disclosure to third parties was not intended,’ and whether the information was exchanged ‘for the limited purpose of assisting in their common cause.

Id. at 441 (citations omitted). The rule applies even in a case where the parties are on opposite sides in a matter, as long as their interests were aligned as to the specific matter in common at the time of the allegedly privileged communications. Id. at 440-41 . “Sharing parties on opposite sides of litigation, being uncertain bedfellows, run a greater than usual risk that one may use the information against the other should subsequent litigation arise between them, yet there is no sound reason not to protect from the rest of the world ... information intended ... to be kept confidential and to be used to further the common litigation interests.” Id. at 442 (citations omitted).

As the Court’s research revealed no reported decisions directly on point, the Court examined cases analyzing related issues arising in insurance disputes in Florida and has attempted to extract from those eases the pertinent principles. The parties disagree as to the relevancy of decisional law in those cases in which an insurer had a “duty to defend” its insured (liability policies), as contrasted with the subject Policy, which provides reimbursement of defense expenses as to “claims made” against an insured being represented by the insured’s chosen counsel (indemnity policies). Plaintiffs assert that no court in Florida has applied the “common interest” doctrine to allow an insurance company to invade the attorney-client privilege between an insured and its independently retained counsel (i.e., unlike the decisions applying the “common legal interest” doctrine in cases involving counsel retained and paid by the insurance company to defend the policyholder, based on the court’s finding that a fiduciary relationship existed 202 ). Defendant argues that the question of attorney-client privilege does not depend on whether the policy at issue is a “duty to defend” or a “duty to advance defense expenses” type of *599 policy, and points to the Florida statute’s absence of any requirement that counsel be controlled by one party or the other, as long as the parties “consulted [the attorney] in common.” Fla. Stat. § 90.502 . The Court has analyzed the reported decisions, below, with attention to these noted distinctions.

In Florida, and in other jurisdictions, a liability insurer must defend the entire case, even if not all of the claims are covered. In cases where counsel was retained by the insurer to represent the insured, courts have not hesitated to find that the interests of the insured and insurer were allied for the purposes of attorney-client privilege (indeed, the parties are considered to have had a fiduciary relationship), 203 such that documents relating to the underlying litigation against the insured were discoverable even if the parties’ interests became adverse in a subsequent bad faith action. See, e.g., Progressive Express Ins. Co. v. Scoma, 975 So.2d 461, 466 (Fla. 2d DCA 2007) (reversing trial court order requiring production of documents in third party bad faith action where court had failed to properly apply common interests doctrine as to communications between insurer, insured, and attorney); Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 907 (Fla. 3d DCA 2004) (where summary judgment had been granted as to coverage and first party bad faith action remained, communications between insurer and the attorney it hired to represent insured were not privileged as the insured and insurer shared a common interest during the underlying proceedings); 204 see, also, Springer v. United Servs. Auto Ass’n, 846 So.2d 1234, 1235 (Fla. 5th DCA 2003) (in ease alleging slander by attorney, communications concerning matters not pertaining to the defense or resolution of the liability ease may be privileged and not subject to disclosure to insurer, e.g., discussion of coverage issues or how to proceed if the ease could not be settled within policy limits, even if interests diverge later with regard to coverage; however, common interest in defeating underlying claim bars the assertion of a privilege with regard to communications between the insured and its counsel such that the insurer is entitled to access such communications). 205 Florida *600 Sheriffs Self-Ins. Fund v. Escambia Cnty., 585 So.2d 461 (Fla. 1st DCA 1991) (in action brought by municipality alleging bad faith against insurer and malpractice against attorney hired by insurer, it was proper to compel disclosure of insurer’s attorney’s files from underlying negligence action — as to which attorney had represented both entities — over assertions of privilege and work-product protections). 206

In contrast to the above-cited cases involving a liability policy (and the insurer’s duty to defend), in cases reviewing an indemnity policy, similar to the Policy at issue here (where Plaintiffs retained the right to hire their own defense counsel), courts necessarily focus on the question of notice to the insurer. 207 Providing notice to the insurer begins the process of adjusting a claim and-as recognized by courts — -the “insured is in a better position to evaluate a claim and its potential consequences.” Nat’l Union Fire Ins. Co. v. Underwriters at Lloyd’s, 971 So.2d 885 (Fla. 3d DCA 2007) (as notice is the essence of a “claims made” policy, court found notice to one insurer was insufficient, but notice to other insurer who had issued consecutive liability policy was sufficient to trigger coverage). 208

Plaintiffs contractually gave to Defendant the right to comment on the reasonableness of counsel’s fees, participate in (and, to some extent, control) settlement decisions as to any claims brought against Plaintiffs, etc. And, the Intervenors were, at all times, co-clients with Plaintiffs, and are seeking coverage pursuant to the Policy, as discussed above. Indeed, the definitions of the various coverage types provided in the Policy are sufficiently complex that the Plaintiffs reasonably should have anticipated that the insurer would demand extensive information if presented a claim for coverage.

For example, the IAML coverage under the Policy only applies to acts or omissions by insureds “solely by reason of his or her status [as an insured],” which suggests that the insurer could reasonably request information as to the specific allegations in any claim made against an insured, and also would require information from the insured as to the context of the alleged wrongdoing— even if not included in the claimant’s pleading. The IAPL coverage applies to claims against an insured for acts or omissions “in the performance of, or failure to perform, Professional Services” and envisions that such Professional Services might include “selection, oversight and direction” by an insured as to another person or entity performing such services on behalf of MapleWood Partners. To investigate whether a claim made by Plaintiffs meets the definitions under this coverage type, the insurer might reasonably demand pertinent information as to all of the employees and agents of Plaintiffs — even if such information is not included *601 in the pleadings in the Underlying Matters. Finally, as to the IFMPL coverage, questions might be raised as to whether an insured person against whom a claim has been brought was acting in his or her capacity “as a director, officer, member of the Board of Managers, general partner, or managing general partner of an Investment Fund.”

This type of insurance policy is distinguishable from the general liability insurance policy which is the subject of most of the published decisions relied on by Plaintiffs; however, the distinctions between the types of policies do not render the principles applied in those decisions inapplicable here. When the insurance policy includes a duty to defend, the insured who purchases that policy acquiesces to representation by an attorney hired by the insurer, and in a “claims made” policy the insured has acquiesced to involvement by its insurer in the defense of any claims brought against the insured. 209 An insurer’s “obligation to advance defense expenses is not materially different from a duty to defend.” Julio & Sons Co. v. Travelers Cas. and Sur. Co., 591 F.Supp.2d 651, 664 (S.D.N.Y.2008) (applying Texas law, and requiring insurer of Julio & Sons to advance defense expenses for Glaser as to the RRGC action). “The whole purpose of advancing legal expenses rather than reimbursing them at the conclusion of litigation is that insured organizations may not have the cash on hand to finance their own defense.” Id. at 659 . Courts presiding over a subsequent coverage dispute will construe the relationship between insurer and insured in the underlying action as a joint client relationship as to the defense of that action (even if the insurer hired the attorney and controls the defense of the insured).

The conclusion to be drawn from these decisions is that an insured who brings a bad faith action against its insurer can obtain communications which were made between the insurer and counsel it hired to represent the insured as to those matters in which the insurer and insured had a common interest. 210 In other words, any privilege as to communications between MapleWood *602 Partners, acting through Glaser, and its attorneys was a shared privilege with Indian Harbor if the communications related to the defense of the Underlying Matters and to the extent that there was a pending claim for coverage (i.e., MapleWood Partners had no reasonable expectation of privacy in light of the Policy’s mandated cooperation), and litigation had not yet been filed (litigation was not even “anticipated” prior to January 1, 2008, according to the parties). 211

However, to be clear, the parties are not aligned as to their coverage dispute before me and, as such, Plaintiffs’ communications with coverage counsel as to the present case are not discoverable. 212 Similarly, Defendant’s communications with its own counsel are not discoverable, generally, as discussed later in this Order. In litigation involving an insurer’s allegedly bad faith conduct, the Supreme Court of Florida has held that, other than in limited circumstances (e.g., where a waiver was established), “when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its [own] counsel during the underlying action.” Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1068-69 (Fla.2011). 213 Communications between an insurer’s adjuster and its outside counsel do not waive the insurer’s attorney-client privilege. See, e.g., Royal Bahamian Ass’n v. QBE Ins. Corp., 2010 WL 3637958 , 2010 U.S. Dist. LEXIS 101275 (S.D.Fla. Sept. 20, 2010) (after in camera review, court determined that communications with insurer’s field adjuster were privileged and privilege had not been waived); but see TIG Ins. Corp. v. Johnson, 799 So.2d 339, 342 (Fla. 4th DCA 2001) (upholding order, in breach of contract case, compelling production of letters between the insurer and its lawyer hired to investigate underlying claims brought against its insured, presumably because a waiver of the privilege occurred by insurer’s failure to provide a privilege log). 214 *603 When an insured brings a bad faith action against his or her insurance company, following the unsuccessful defense of a tort lawsuit, the attorney-client privilege requires special analysis. Under these circumstances, the same attorney may often ethically represent both the insured and the insurer in the tort action. See R. Regulating Fla. Bar 4 — 1.7(e). That is, the insured and insurer’s interests may be aligned, or at least may not be adverse. In many tort actions, then, the lawyer for the named defendant is also the lawyer for the defendant’s insurance company, even though the insurance company is not a party to the lawsuit.

Scoma , at 466. 215 The complexity of such dual representation can be addressed by the abatement of the coverage dispute, for example, which recognizes the non-final nature of coverage disputes in these types of cases, raised during the pendency of the defense of the underlying claims. In fact, the Policy in this case specifically envisions that any initial decision to advance defense expenses may be an interim decision, as the Policy includes an exclusion for intentional misconduct or fraud that applies only after “a final adjudication in the underlying action.” IAML, Exclusions, (A).

In conclusion, as a general holding, the Court finds that when an insured has purchased a directors and officers indemnity policy such as the Policy at issue in this case, which provides for the reimbursement of incurred defense expenses as to “claims made” against the insured and includes a cooperation clause and other requirements governing litigation as to underlying claims brought against the insured (e.g., a requirement that the insured not admit liability or settle any claim without the insurer’s consent), and when the insured (or its own counsel) discloses otherwise-privileged materials with the insurer, it is proper to find that the insured has selectively waived 216 its privilege as to matters to which its interests with the insurer 217 The Court finds this approach to be consistent with insurance law and privilege law as developed in Florida. Plaintiffs assert that this Court’s September 2011 Order held that any acceptance of reimbursement (i.e., coverage) for defense expenses eliminated an insured’s right to assert attorney-client privilege as to any related matter, even if the insured was not a joint client with the insurer. The Court disagrees, as the Court’s Order was not a globally applicable statement but rather was focused on the facts alleged before me. 218 The Court has *604 looked at several factors which support the finding that Indian Harbor effectively was a joint client of Plaintiffs as to the Underlying Matters: the parties’ voluntarily and affirmatively undertaken contractual obligations pursuant to the Policy, evidence of cooperation and disclosure as to defense counsel’s expenses, shared decision-making roles as to material aspects of the litigation — including the question of trial strategy and settlement decisions, frequent attendance at joint meetings by both parties’ representatives, frequency and content of correspondence — all done toward the achievement of a common objective of successfully defending against the claims in the Underlying Matters. Defendant had not only a financial interest but, more importantly, a direct legal interest in the outcome of the Underlying Matters. 219

In summary, the Court finds that — at least in the context of the Policy before me today — that the insurer is deemed to be a joint client as to the specific representation of the Plaintiffs/insureds (as well as the MapleWood and Julio entities and the Intervenors), in the underlying liability action. 220 A question remains, however, as to what time period is covered. A joint client relationship among the Plaintiffs and Defendant can be considered to have existed at least until January 1, 2008, the date on which the parties agree that they first anticipated that they would be in litigation against each other. 221 As such, the approximately 250 documents listed in the privilege log with a date prior are not protected by attorney-client privilege from disclosure to Defendant. (The Court discusses the applicability of work-product immunity, below.) 222

The situation in which parties are engaging in a coverage dispute at the same time they are cooperating in the defense of an underlying action probably is not unique, although it is somewhat problematic — as evidenced by the multiple discovery disputes in this case. In an analogous context, the Supreme Court of Florida has observed that “when coverage and bad faith actions are initiated simultaneously, the courts should employ existing tools, such as the abatement of actions and in-camera inspection, to ensure full and fair discovery in both causes of action.” Ruiz, at 1130 (emphasis added). The parties before the Court are now solely in litigation as to the coverage matter, as all of the Underlying Matters have been resolved. In light of this specific situation, the Court finds that all of the communications between Miller and his clients as to the Underlying Matters, including those communications which occurred after January 1, 2008, are subject to disclosure in light of the *605 shared privilege possessed by the Indian Harbor, unless any of those documents are subject to work-product protections, discussed below.

The Court’s conclusions, above, were based on the Court’s determination that — under the specific facts of this case, including the terms of the Policy and the status of the clients— the insurer stood in a joint-client relationship with its insured as to the defense of the Underlying Matters and, as such, the question of a shared attorney-client privilege was answered in the affirmative. The answer to the question is more elusive, however, if the insurer and insured are not considered to be joint clients of the defense attorney but instead their relationship is examined to determine whether they shared a “common legal interest” in the Underlying Matters.

9. The “common legal interest” or “joint defense” approach to confidentiality when more than one attorney or law firm is involved

The joint-defense doctrine developed in the context of criminal procedure, as the coordination of a defense strategy among co-defendants (with different attorneys) facing prosecution serves the general purpose for which attorney-client privilege was created, i.e., to allow attorneys to provide competent legal advice and thereby promote the observanee of law and administration of justice. 223 In the context of a criminal prosecution, attorneys of co-defendants are permitted to share confidential information without waiving the privilege as to any other parties.

The joint-defense doctrine has expanded to be known as the “community of interest” or “common legal interest” doctrine, and is applicable in both criminal and civil actions 224 The “common legal interest” rule is an exception to the general rule that disclosure of otherwise privileged communications eliminates, or waives, the privileged status of those communications. This rule “enables litigants who share unified interests to exchange this privileged information to adequately prepare their cases without losing the protection afforded by the privilege.” Visual Scene, at 440. 225 This rule is “entirely consistent with the policy underlying [attorney-client] privilege.” Id. 226

Pursuant to this doctrine, attorneys representing clients with similar legal interests can share information without risk of being compelled to disclose such information generally. Interests of the members of the joint defense group need not be entirely congruent. 227 One member of a joint defense group cannot waive the privilege that attached to the information shared by another member of the group without the consent of *606 that member, but any defendant could, of course, testify as to her own statements at any time. 228 By agreeing to be a part of a joint defense, she only agrees not to disclose anything learned from her co-defendants through that joint arrangement, nor could any of those co-defendants disclose what she had told them or their attorneys in confidence. However, if the parties to that agreement are later in opposition with each other, statements which were made by one co-defendant to another defendant’s attorney are not protected by privilege. 229

A member of a joint defense group can waive his privilege, of course, as to his own prior statements, but other clients of the joint defense group can keep him from directly or indirectly revealing the privileged communications of the other clients. Plaintiffs’ coverage counsel claims that “[U]nder the joint defense agreement____ [t]here is no waiver of the joint defense agreement privilege simply because one member of the joint defense agreement conveys something that his client conveyed to him through another member.” Miller Dep., at 238-39 (comments of counsel). Plaintiffs’ counsel forbid Miller to testify as to what Cox might have said on behalf of Julio & Sons. (Miller had testified that “[t]he client came up with” the proposed $1.75 million settlement. Miller Dep., at 237; see, also, EOF Nos. 132-3, 139-1.)

The “common legal interest” doctrine developed, perhaps confusingly so, as an extension of the attorney-client privilege to those situations in which parties sharing a common legal interest are deemed to share a privilege even if the parties are represented by different attorneys. A review of the parties’ positions in this case, and the relevant reported decisions, 230 suggests a need for clarity. 231 *607 The Court has attempted to rein in what may be considered an overly broad interpretation of the “common legal interest” (formerly “joint defense group”) exception to traditional concepts of waiver of attorney-client privilege, and has tried to clearly state the specific narrow rule. 232

The interests of Plaintiffs (and their entire joint defense group) were aligned with Indian Harbor as all had an interest in minimizing liability in the Underlying Matters. 233 Plaintiffs have declared that: “No legal effort was made in connection with the prosecution of MapleWood’s counterclaims in RRGC or Shashy that did not operate to minimize the potential liability of an insured on a claim made against the insured.” EOF No. 167, ¶ 153. In other words, all of Miller’s efforts were geared toward minimizing liability, which would be the goal of Indian Harbor as well. The law provides that all of these joint clients, including Indian Harbor, could freely communicate (without waiving any privilege) in order to prepare a successful defense. However, a client who is part of that joint defense is entitled to waive the privilege as to its own statements.

When applying the doctrine to the present case, if it is assumed that the insurer shares a “common legal interest” with Plaintiffs (and also the MapleWood entities, Julio’s entities and Intervenors), then Miller’s communications to Defendant on behalf of all of his clients and as to all details of the RRGC settlement are construed to be two client’s “consulting in common” of an attorney. Miller communicated, presumably, at all times with the permission of MapleWood Partners, acting through Glaser. The other clients cannot now claim that certain aspects were privileged, as they apparently raised no objection at the time and, in any event, Glaser apparently granted permission for the disclosures on behalf of the corporate entity holding the privilege.

Plaintiffs oppose the application of the “common legal interest” doctrine to this case and argue, essentially, that once the interests of an insurer and its insured become adverse, the insured’s prior communications (even if they previously were required to be disclosed to the insurer pursuant to a cooperation clause) become privileged retroactively. This is a highly impractical result — insurers would have to unring the bell of what they had received, properly, when the insured was satisfied with the insurers’ conduct, and return any communications or documents immediately upon being sued in a subsequent coverage dispute. See Springer v. United Services Auto. Ass’n, 846 So.2d 1234 (Fla. 5th DCA 2003).

The doctrine has its critics. “[N]o one has ever made a convincing argument that strategy sessions among co-defendants produce a benefit to the legal system that outweighs the cost of the loss of evidence to the courts.” Charles Alan Wright and Kenneth W. Graham, Jr., 24 Fed. Prac. & Proc. § 5493 (1986). Recognizing a privilege in the “common legal interest” setting does not render the legal system more efficient, nor does it necessarily serve the purposes of justice. While it may encourage parties to share in *608 formation and, thereby, result in reduced costs for clients (as Miller testified, “[w]e did what we could to try to keep costs down [by not duplicating effort]”), such financial benefits for clients are not a worthy reason for extension of a privilege which by application negatively affects the search for truth. As noted by another critic of the doctrine, “[a]ny possible benefit is outweighed by the damage done to the truth-finding mission of the justice system.” Giesel, 95 Marquette L.Rev. at 479.

The policy behind the attorney-client privilege (encouraging candid disclosures by clients which improve the ability of an attorney to provide effective representation) gains little by extending the privilege to communications made to attorneys who do not individually represent the client. For example, it is easy to imagine a situation, particularly in cases involving corporate clients and their officers, in which a party is at risk of entry of an adverse judgment which many others (who have access to information which has been protected from disclosure in the court proceeding) know to be improper. This case presents an example of such risk. While certain members of Miller’s joint defense group of clients (and their counsel) obviously were aware of the fact that Julio & Sons was insured by Travelers and had a colorable claim for reimbursement of expenses incurred in defending Glaser in the Underlying Matters, such relevant information was not disclosed to Indian Harbor until April 2008, when a claim for coverage under its Policy had been pending for more than a year. (In March 2008, a lawsuit had been filed against Travelers seeking reimbursement of defense expenses; judgment was entered in December 2008 finding Travelers liable for such expenses.) 234

Nor does the application of the “common legal interest” doctrine reduce the volume of litigation; indeed, it arguably increases litigation as it creates uncertainty as to the boundaries of privilege. The extensive litigation in this case as to privilege issues demonstrates that there is no resulting decrease in costly and protracted litigation under the “common legal interest” doctrine. Preventing others from access to communications which occurred in a joint defense group simply does not appear to serve the interests of the attorney-client privilege. Two issues illustrate the problems inherent in a “common legal interest” approach to privilege determinations: the proper role of potentially-conflicted counsel, and the management of potential waivers of privilege by multiple entities/individuals as clients/attorneys in the joint defense group.

Plaintiffs argue that extending the attorney-client privilege to apply to relationships that could never become joint client relationships (because of inherent conflicts of interest) “would lead to bizarre results.” EOF 139, at 18. 235 They claim that each defendant *609 in a multi-defendant case could never assert a claim of privilege against another defendant because each has a common interest in having the complaint dismissed (even if each defendant was represented by (and had to be so) by separate counsel because the co-defendants did not have a totality of common interests in how the ease was litigated that would allow for joint representation. (A co-defendant would get a copy of any privileged communication another co-defendant received.) According to Plaintiffs, “[t]his is a ridiculous result that the framers of the statute were careful to avoid by their limitation of the statute’s reach to ‘joint clients’ and not to any two entities that happen to share ‘a’ common interest in defeating another party.” However, the Court notes that Plaintiffs’ “ridiculous” scenario presumes that the privilege question arises in the same litigation in which the co-defendants are aligned as defendants. In the present case, Indian Harbor was not a party to the underlying case, nor did the insured have the right, pursuant to the insurance contract, to join Indian Harbor as a party. 236

Here, if the parties are not perceived as joint clients, then the actions of MapleWood Partners in communicating freely with its insured, through Glaser and Miller, have waived the privilege. And, the co-defendants in the Underlying Matters who are either joint clients or allied by a common legal interest, cannot preclude the other member of the joint defense group (MapleWood Partners) from having waived the privilege it possessed as to its own statements. “A client who is part of a joint defense arrangement is entitled to waive the privilege for his own statements, and his co-defendants cannot preclude him from doing so.” United States v. Agnello, 135 F.Supp.2d 380, 383 (E.D.N.Y.2001)(corporation has no independent privilege as to communications between the individual who owned and closely held the corporation and the individual’s attorney). 237

Miller had been representing the Maple-Wood entities for several years before the RRGC case was filed. As defense counsel, Miller is not charged with knowledge of coverage issues. 238 To effectively defend his *610 clients, Miller needed the trust and confidence of his clients, and his primary objective was loss minimization in the Underlying Matters, an objective shared by the clients who hired him and the “client” who was potentially responsible for any judgment, and for Miller’s fees. Miller was not being compensated to establish coverage (or lack thereof), but rather was contracted to advance his clients’ interests, as they defined them, in the Underlying Matters. Nor should Miller, or any defense counsel, need to spend much time deciding who they represent as a client. Miller could get a waiver from Plaintiffs as to his ability to communicate with the insurer and, if his clients are not willing, then perhaps they need other counsel. If Miller is going to disclose information to Indian Harbor that might be adverse to the coverage question, then Miller needs to tell his clients in advance. If the clients object to the disclosure, then they face the risk that the cooperation clause of the insurance policy will have been breached and there will be no coverage. If the clients agree to the disclosure, then Miller might need to withdraw as defense counsel rather than straddle the line between two sets of interests. There is no rational basis to burden Miller or other defense attorneys with the dual role of protecting privileged items while also trying to obtain reimbursement for defense expenses as to underlying claims defended before the insured ends up in litigation against its own insurer. Thus, the conception of a joint client relationship as to all communications relating to the Underlying Matters provides clear guidance as to boundaries of privilege.

Here, as noted above, Plaintiffs and Defendant consulted Miller in common. Miller prepared a “Pre-trial Report” for Defendant containing an assessment of the financial and legal risks of the RRGC action, and the potential damages or settlement value. As another example, it appears that Miller was scheduled to have (and may have had) a conference call with counsel for Indian Harbor on March 24, 2008, regarding his assessment of the RRGC and Shashy actions, including his “thoughts on potential liability and damages, prospects for settlement, and your proposed strategy for proceeding with the defense in the absence of an opportunity for a reasonable settlement.” ECF No. 185-3 (March 3, 2008, e-mail from Wahl to Miller, outlining topics for upcoming conference call).

The Court finds that Plaintiffs’ communications, through Miller, with Indian Harbor did not bear a badge of confidentiality. Initially, Miller apparently never declined a request by Indian Harbor for information. Nor does it appear that Miller sought his clients’ informed consent each time before he disclosed a potentially privileged matter to Indian Harbor (whether Miller had a duty to do so or not is not relevant to the question before me — were these parties in a relationship which was more fiduciary in nature or more adversarial in nature during the defense of the Underlying Matters?). Defendant also was engaged in Plaintiffs’ settlement discussions, as required by the Policy’s explicit terms which Plaintiffs accepted when purchasing the Policy, 239 It is evident that Defendant shared a common legal interest in defending its insured in the underlying proceedings. This interest was legal, and not just financial, because of the multiple additional issues — including, e.g., the question of whether other entities might proceed against the insurer in the event of an unsatisfactory result.

In further support, the Court notes that as late as January 2009, Plaintiffs’ coverage counsel advised Defendant that: “[w]e have no issue with an adjuster obtaining information [as to the then-pending RRGC matter] for the internal use and evaluation by the carrier.” ECF No. 218-1. Plaintiffs acknowledge that counsel for the insurer “was directly involved in investigating the RRGC suit from the outset, including an evaluation of that suit for the purposes of potential settlement.” ECF No. 177, at 4 (Plaintiffs’ motion to strike a supplemental filing by Defendant). “At his deposition, Attorney Miller further debunked any notion that [counsel for the insurer] was not acting in an investigatory capacity, confirming that [coun *611 sel] communicated with him directly on issues that had relevance to the formulation and maintenance of Indian Harbor’s coverage position.” Id., at 5. Thus, the Court finds that all RRGC-related communications and documents in the log are subject to disclosure, absent a work-product protection.

Miller’s deposition testimony supports this view, as he testified that he provided updates to Indian Harbor (through its counsel) when requested and also on his own initiative when “something material” occurred in the litigation, and had multiple conversations with Indian Harbor regarding his mental impressions as to the defense of the RRGC action. To the extent that Miller possessed any information potentially inconsistent with a claim for insurance coverage, Miller would have been required to notify his client and, possibly, withdraw from representation, pursuant to Florida Bar Rules and ethics opinions.

For example, a policyholder might tell a defense lawyer that he or she lied when applying for insurance or when reporting the facts of an occurrence so as to obtain insurance coverage. In such a situation, may a defense lawyer help a policyholder maintain the flow of benefits from an insurance company by withholding information from the insurer-client? We think not. Although the lawyer may not have to communicate the information, at least the lawyer must refrain from assisting the conduct and withdraw. Because some of the benefits of the fraud flow to the lawyer as fees, the danger of being found to be eomplicit in it should lead any reasonable attorney to follow this course.

Ellen S. Pryor and Charles Silver, 15 Geo. J. Legal Ethics 29 , 89 (2001). The record reveals that while the MapleWood entities had a financial interest in the Julio entities for several years before purchasing the Policy, Glaser was not on the board of Julio & Sons until February 2007. There is no evidence that Miller knew about the Travelers insurance policy issued to Julio & Sons (and Glaser’s status as an insured thereunder), nor that Miller had a duty to disclose such information if he did know about it, 240 but the question has been at issue for several years in this litigation.

Accepting that Plaintiffs had a joint defense oral agreement, the Court finds that they collectively were joint clients with Indian Harbor or, at least had a common legal interest in the outcome of the Underlying Matters. This joint client status, when applied to communications where the exchange of information is “for the limited purpose of assisting” in the parties’ common, litigation-related cause, 241 results in an order compelling disclosure.

The communications which are subject to disclosure under this theory must have been those communications made in furtherance of an ongoing common legal interest, 242 the relevant question being: “whether the information was exchanged [between the clients] ‘for the limited purpose of assisting in their common cause.’ ” Id., at 441 (citation omitted). In this case, the Court has determined that Plaintiffs and Defendant had a common legal interest in minimizing liability or exposure to a judgment in the Underlying Matters. The privilege log includes communications or documents which relate to calculations of settlement value or options (which also may reveal information as to the respective liability of the defendants in the Underlying Matters), 243 litigation outcomes (which may include an *612 assessment of the respective value of each claim in the Underlying Matters), 244 and the representation of individual defendants and questions regarding attorneys’ fees payments (which may reveal information as to the apportionment of attorneys’ fees among elients/subjects). 245 Such documents appear to qualify as attorney-client privileged documents (or, perhaps, are immune from production as attorney work-product) but even if so-they are still discoverable by Defendant in light of this Court’s conclusion that Defendant is a joint client with Plaintiffs or, alternatively, that Defendant was an allied party with a common legal interest.

In contrast, documents simply shared between clients are not protected by privilege. “If sharing documents, among co-defendants automatically shielded all those underlying documents as attorney-client communications, then any defendant in a multi-defendant lawsuit could shield each and every relevant document from the plaintiffs discovery requests by the expedient method of simply shipping all of its documents to a co-defendant.” Platypus Wear, Inc. v. Clarke Modet & Co., 2007 WL 4557158 , 2007 U.S. Dist. LEXIS 94327 (S.D.Fla. Dec. 21, 2007). 246 Not all communications and documents between MapleWood entities, the Intervenors, and Julio entities and the group’s attorneys are protected pursuant to the “common legal interest” doctrine which is shared among them because of their allied interest in defending against the Underlying Matters. Only those communications which were to aid in litigation, in which the parties shared a common interest, qualify for protection from disclosure to others.

Plaintiffs argue that they do not share a common interest with Indian Harbor with respect to how to categorize the relative exposure of the underlying litigation or settlements. However, the subject matter of the documents at issue appears to be the same as the subject matter of communications and documents already produced to Defendant, either pursuant to the cooperation clause (e.g., the Pre-trial Report prepared by Miller, Miller’s proposed litigation budget, email exchange between Miller and McNutt reflecting Miller’s willingness to discuss his analysis of the case and whether trial continuance would have impact on settlement discussions, etc.), or in discovery in this case.

The Court’s ruling today does not completely eliminate the confidentiality of Plaintiffs’ communications with its counsel, but instead finds that Plaintiffs participated in what was, in effect, a joint client relationship with Indian Harbor as to the Underlying Matters and therefore cannot continue to withhold documents from production to that entity and on that topic. Indian Harbor must, of course, maintain the confidential nature of these documents and may not disclose, absent court order, anything which would otherwise be privileged or protected as to outside interests. 247 The Court reminds the parties that full disclosure by an insured to her insurer is a matter of public policy, with the correlated benefit that accurate coverage decisions can be made, and made promptly. 248 Indeed, in Florida there is a statutory provision that permits an insurer to avoid coverage if an application for insurance contains a fraudulent statement or omits information which is “material either to the *613 acceptance of the risk or to the hazard assumed by the insurer.” Fla. Stat. § 627.409 .

As observed by Judge Gerald Tjoflat, writing for the former Fifth Circuit, “Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent.” Brennan’s Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 174 (5th Cir.1979). 249 This Court’s review of the relevant jurisprudence revealed that several of the decisions provided incomplete guidance; a number of courts clearly have struggled to marshal these complex areas of the law (attorney-client privilege/work-produet protections, indemnity insurance issues, corporate entity representation) and render helpful precedent. The Court has expended a significant amount of time to prepare this opinion and, hopefully, this opinion will advance the law in this area and protect my judicial colleagues from the burdens presented by the level of intimate review of discovery matters which appears to be increasingly demanded by litigants.

Judges must do their best to interpret the law, as provided by the legislature, such that clear bounds of privilege are established. In this case, Plaintiffs voluntarily purchased an insurance policy which included a cooperation clause and other provisions which made it obvious, particularly to a corporate customer such as t

This text is long and has been trimmed here. Open the source document for the complete record.