If the Claims Attorney is Also the Adjuster, the Work Product Doctrine May Not Apply when Seeking Discovery

Originally published by Denise Sze.

In past blogs I’ve talked about rulings and the trend across the country where courts are deeming work product privilege in bad faith litigation for the claims attorney to be incorrect and so their work product is discoverable. Courts are ruling that just because an attorney for the insurance company is on a file and advising on a claim does not always mean that their work product is in anticipation of litigation and therefore is not privileged or confidential under the Attorney Work Product Doctrine.
In bad faith litigation, insurers often argue that at any point in time an insurer’s attorney steps into a claim to advise the insurer and their adjusters, the claim file is privileged. Insurers across the country have utilized this method of calling in an attorney to advise early on to keep a majority of the claims file confidential and exempt from discovery while bad faith litigation is ongoing. By this method many insurers are making a stand as to why their documents…

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