TLGGR Secures Appellate Division Victory Regarding the Discoverability of Requests for Equitable Adjustment

In the matter of Arch Insurance Company v Delric Construction Co., Inc., TLGGR, as counsel to Arch, successfully argued that the narrative portion of a request for equitable adjustment (“REA”) submitted by the general contractor to the Dormitory Authority of the State of New York (“DANSY”) was discoverable.

The dispute began when the general contractor moved for a protective order to foreclose disclosure of the REA, claiming that it was generated for settlement purposes. Arch argued that the creation and transmittal of the REA was part of the normal claim submission process on the project. It was only after the REA had been rejected by DASNY that the parties engaged in settlement discussions by way of mediation. The Supreme Court agreed with Arch and denied the general contractor’s motion, explaining that it had carefully reviewed the REA and saw nothing to indicate that it was created solely for the purpose of settlement.

The general contractor appealed, and the Appellate Division, Second Department, affirmed the order of the trial court. The Appellate Division reasoned that the general contractor’s broad assertions of privilege, which were based largely on the REA being marked “privileged and confidential,” were “insufficient to show that the document was immune from disclosure.”

In the future, the Court’s decision will serve as an important resource for subcontractors and sureties seeking information related to the general contractor’s position related to project delays that bear upon a subcontractors or sureties’ pass-through claims.