§ 12.8 Claim Files: Attorney-client and Work/product Privileges

• Library: Guide to South Carolina Liability and Property Insurance Law (SCBar) (2019 Ed.)

§ 12.8 Claim Files: Attorney-Client and Work/Product Privileges

In federal court, "[f]ederal law governs the work product doctrine" and "[t]he doctrine protects from discovery any 'documents and tangible things that are prepared in anticipation of litigation or for trial by or for [a] party or its representative (including the . . . party's attorney, consultant, surety, indemnitor, insurer, or agent).'"⁸⁷ The party claiming that the documents are protected by work product protection has the burden of establishing that the documents are entitled to protection.⁸⁸ The federal court has acknowledged that "'[t]he application of the work product doctrine is particularly difficult in the context of insurance claims.'"⁸⁹ The court also recognized that "'[i]nsurance companies have a duty to investigate, evaluate, and adjust claims made by their insureds. The creation of documents during this process is part of the ordinary course of business of insurance companies, and the fact that litigation is pending or may eventually ensue does not cloak such documents with work-production protection.'"⁹⁰ Further, "'[b]ecause an insurance company has a duty in the ordinary course of business to investigate and evaluate claims made by its insureds, the claims files containing such documents usually cannot be entitled to work product protection.'"⁹¹ To establish the work product protection applies, the proponent "must establish that the 'driving force behind the preparation of each requested document' is the prospect of litigation."⁹² The court also differentiated between the two types of work product:

There are two types of work product: opinion work product and ordinary work product. Opinion work product involves "mental impressions, conclusions, opinions, or legal theories ... concerning the litigation [and] is immune to the same extent as an attorney-client communication. This is so whether the material was actually prepared by the attorney or by another representative of the party." Id. at 984 (internal quotation marks and citations omitted). Ordinary work product, or "[a]ll other documents and tangible things prepared in anticipation of litigation or for trial[,] may be discovered, but only on a showing of substantial need." Id. (internal quotation marks omitted).⁹³
Ultimately, the court determined that "[t]he claims file itself is not necessarily work product" but also determined the information provided was not sufficient to fully assess the issue.⁹⁴

With regard to...