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Where a plaintiff insurance company has requested a declaration that it did not violate any duties to its policyholder or otherwise act in bad faith when it refused to make any coverage payment to the defendant on behalf of the policyholder when the defendant balked at signing its required release, the insurer plainly has the right to obtain from the defendant a fulsome and factual explanation of her objections to the insurer’s proffered settlement and release document, but if she is unable or unwilling to furnish fully responsive substantive information without referencing or otherwise relying upon attorney-client communications, then any otherwise available privilege will be deemed waived.

“Presented for decision is Plaintiff Liberty Mutual Insurance Company’s (‘Liberty Mutual’) Motion to Compel Production of Documents, Answers to Interrogatories, and Deposition Testimony. …

“This case arises out of a motor vehicle accident occurring on February 13, 2021. On that date, Christina Zielenski (‘Zielenski’) suffered a collision when Enrique Ramirez (‘Ramirez’) negligently backed his automobile into hers. …

“… By this action, Liberty Mutual seeks a declaration that the insurer did not violate any duties to Ramirez or otherwise act in bad faith when it refused to make any coverage payment to Zielenski on behalf of Ramirez when Zielenski balked at signing its required release. …

“Presented for decision is Liberty Mutual’s Motion to Compel Discovery, by which it seeks answers to its interrogatories and documents responsive to its requests for production. Zielenski has renewed her insistence that the discovery so sought is protected from disclosure by the attorney-client privilege. …

“… In these circumstances, it cannot be gainsaid that Zielenski’s reasons for rejecting Liberty Mutual’s release-conditioned settlement payout lie at the center of the present legal action. But for the parties’ dispute over the proper language and scope of the release, the policy-based settlement agreement would have been consummated. …

“The action so understood, the discovery that Liberty Mutual seeks from Zielenski is appropriate, to a point. Liberty Mutual plainly has the right to obtain from Zielenski a fulsome and factual explanation of her objections to the insurer’s proffered settlement and release document. Zielenski can furnish such an explanation by answering Interrogatory No. 25, and by producing all non-privileged documents responsive to Request for Production No. 18. The Rules of Civil Procedure, of course, allow counsel to assist in the framing of these discovery responses. If Zielenski does this satisfactorily, and without interposing the privilege-based objections she has to date, then the Court agrees that the other contested interrogatory (No. 24) and the three other contested document requests (Nos. 14, 16 and 17) represent encroachments on the attorney-client privilege and may be disregarded. …

“On the other hand, if Zielenski holds fast to the interrogatory answers she has provided thus far — viz., that she rejected the tendered settlement and release ‘following conversation with my attorneys,’ and that the substance of such conversations are matters of lawyer-client privilege that cannot be disclosed — then the Court agrees that this Defendant has placed her attorney-client communications directly in issue and the privilege will be deemed waived. …

“Should Zielenski continue to insist that her rejection of Liberty Mutual’s settlement payment and release was based entirely on communications with legal counsel, the substance of which she would cloak in secrecy under the attorney-client privilege, then she is using the privilege as both sword (a claim-supporting justification for her conduct) and shield (a bulwark against the otherwise compulsory disclosure of the reasons underlying such justification). This will not be allowed. …

“In accordance with the foregoing, Plaintiff’s motion to Compel Discovery shall be allowed as follows. Defendant Christina Zielenski is hereby ordered to provide a fulsome and factual response to Interrogatory No. 25, and to produce documents responsive to Request for Production No. 18. Should Zielenski be unable or unwilling to furnish fully responsive substantive information without referencing or otherwise relying upon attorney-client communications, then any otherwise available privilege shall be deemed waived. In that event, Zielenski shall produce fulsome and factual responses to Interrogatory Nos. 24 and 25, together with all documents responsive to Request for Production Nos. 14, 16, 17 and 18.”

Liberty Mutual Insurance Company v. Ramirez, et al. (Lawyers Weekly No. 12-044-25) (8 pages) (Gordon, J.) (Suffolk Superior Court) (Docket No. 2484CV00196-C) (Sept. 16, 2025).

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