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KOPPERS CO. v. AETNA CAS. & SUR. CO.

March 17, 1994

KOPPERS COMPANY, INC., Plaintiff,
v.
THE AETNA CASUALTY AND SURETY COMPANY, THE AMERICAN HOME ASSURANCE COMPANY, COMMERCIAL UNION INSURANCE COMPANY, THE HOME INSURANCE COMPANY, and UNDERWRITERS AT LLOYD'S OF LONDON, Defendants.



The opinion of the court was delivered by: MAURICE B. COHILL, JR.

 COHILL, D.J.

 Before this Court are (1) Plaintiff Koppers Company, Inc.'s ("Koppers") "Objections to Certain Portions of Magistrate Judge Mitchell's 10/26/93 Opinion on Privilege and Work Product Issues" (Objections) (Doc. 292);

 (2) Koppers' "Motion for Leave to File Instanter its Reply Supporting its Objection" (Motion for Leave) (Doc. 335); *fn1" and

 (3) Defendants' "Motion for Clarification of February 11, 1994 Stay" (Motion for Clarification) (Doc. 370).

 In its Objections, Koppers objects to the magistrate judge's opinion with respect to two issues: (1) the "at-issue" exception to the attorney-client privilege, and (2) the "self-evaluation" or "critical self-analysis" privilege.

 In its Motion for Leave, Koppers asks us to delay a ruling on its objections to the magistrate judge's opinion until the parties identify the documents to which the magistrate judge's opinion applies.

 In their Motion for Clarification, the defendants ask us to clarify our order dated February 11, 1994. That order stayed the magistrate judge's order dated February 2, 1994 in its entirety, and the defendants want us to confine the stay to documents that are pertinent only to the at-issue and self-analysis disputes.

 For the reasons below, after de novo review of the magistrate judge's opinion dated October 26, 1993 (the "10/26/93 Opinion") (Doc. 287), we find that opinion was not clearly erroneous, and therefore we will affirm it. We will also grant Koppers' Motion for Leave to File Instanter and deny as moot defendants' Motion for Clarification.

 I. Standard of Review

 Pursuant to 28 U.S.C. ยง 636(b)(1)(A) and W.D.PA.LR 72.1.3B, we may set aside any portion of a magistrate judge's order found to be clearly erroneous or contrary to law. Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992).

 II. The at-issue exception to attorney-client privilege

 Much of the communication between an attorney and an attorney's client is privileged and thus undiscoverable by an adversary. Though privileges "are not lightly created nor expansively construed," United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), an exception to this general rule might apply where the party opposing discovery has introduced the substance of the ordinarily-privileged communication into the litigation. *fn2" Such a party is said to have put the communication "at-issue" and thereby waived the attorney-client privilege. Many courts applying the at-issue exception use a variation of the three-factor test set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975):


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