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UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CONTINENTAL CASUALTY COMPANY, et al., Plaintiffs, v. UNDER ARMOUR, INC., Defendant. Case No.: 06 CV 3224 CCB

MEMORANDUM AND OPINION In this declaratory judgment action, three insurance companies, Continental Casualty Company, Transcontinental Insurance Company, and Valley Forge Insurance Company, collectively referred to as "CNA", sued their insured, Under Armour , Inc., seeking a determination that, under a series of insurance policies issued to Under Armour, they are obligated neither to defend nor indemnify it in connection with litigation brought against Under Armour by two other companies, Topolewski America Inc., and Metal Jeans, Inc. The case has been assigned to me to resolve all discovery disputes. Paper No. 33. The pending dispute involves Under Armour's motion for a ruling regarding what use, if any, it may make of a .pdf file it received from its independent insurance broker, Frenkel and Company, ("Frenkel") containing copies of claims notes allegedly containing attorney client privileged and work product protected communications from CNA's counsel, which erroneously had been posted in the wrong location by the CNA claims specialist assigned to the Under Armour claim on a CNA website, cnacentral.com. Frenkel was authorized by CNA to access and read the claims notes for

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"its own individual use" by a Terms of Service Agreement it entered into with CNA. As to these allegedly privileged and protected materials, Under Armour contends that neither the attorney client privilege nor work product doctrine is applicable, or, if applicable, that they have been waived. CNA asserts that the claims notes at issue are privileged and protected, and that there has been no waiver. The motion has been fully briefed in Papers No. 27, 28, 29, 39, and 40, and the parties have stipulated that Maryland law governs, Paper No. 37. On January 14, 2008, a hearing was held in court during which I assumed, without deciding, that the claims notes at issue were both privileged and work product protected, but ruled that both the privilege and protection had been waived, Paper No. 41. Although I fully explained the basis for my ruling during the hearing, I reserved the right to supplement the ruling with a written memorandum and opinion, to provide guidance to counsel in other cases regarding the recurring difficult issues raised by this dispute. This memorandum and order serves this purpose. Background CNA issued four insurance policies to Under Armour

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Maryland Law