The 18th hole of The Greenbrier Classic in 2015 continues to play out today as the PGA Tour event operators, Old White Charities, Inc., is suing its insurance agency, Bankers Insurance, “alleging negligence for failing to procure coverage without a hole-length limitation.” Curiously, Bankers identified their General Counsel as a potential witness, making him eligible to be deposed.
Presnell on Privileges takes us back to the green in 2015 when two players, Greg McNeil and Justin Thomas, each sunk a hole-in-one on the course’s par-3, 137-yard 18th hole, sending delighted spectators home with a total of $192,400, courtesy of the Classic and its operator, Old White.
While Old White thought it had proper insurance coverage to pay for the extravagant fan experience, it did not. The policy required that the hole-to-length be at least 150 yards — 13 yards short of coverage. Old White sued Bankers for negligence.
When Old White moved to compel the deposition of Bankers’ General Counsel, Melvin Tull, Bankers argued that this would violate attorney-client privilege. The court did not agree and ruled Tull could be deposed. While it did allow Tull to assert privilege objections during the deposition, it cautioned him to be careful given “the marked inconsistencies” of fellow Bankers employees Marshall Fleming and Gene Hayes, who “had provided contradictory testimony about whether it knew Old White required a hole-in-one policy without hole-length limitations.”
As Presnell clarifies, in this case the two employees claimed to be unaware of Old White’s wishes, but in a separate case they claimed they were aware.
Because of a letter that Tull had written on behalf of Old White demanding that the carrier pay the $192,400, the court held that Tull’s testimony could help clarify the inconsistent testimony of his fellow Bankers employees. Per Presnell:
“And importantly, Bankers had identified Tull as Rule 26(a)(1)(A)(i) witness. In the separate case, Old White (not Bankers) identified Tull as a potential witness. And in the present case, Bankers did not identify Tull directly, but generally identified “any individual identified by any party” in the other case which, of course, included Tull.”
It’s possible, surmises Presnell, that Bankers inadvertently identified its own GC when trying to capture any potential witness.
“If these employees had not provided contradictory testimony, would the court have ordered the deposition? Arguably not, but we will never know.”
As the case plays on, Presnell also dives into additional expert analysis on the court correctly following FRE 501 to apply state privilege law in this diversity case, and the court not mentioning the Shelton standard.