26.31 - 1. “In The Regular Course Of Business”

JurisdictionNew York

1. “In the Regular Course of Business”

As noted above, the attorney work product doctrine only applies to materials “created primarily, if not solely, in anticipation of litigation.”3821 This is in contrast to materials prepared “in the regular course of business.” In most jurisdictions, materials prepared in the regular course of business are not protected by the doctrine.

For example, some New York courts have held that an insurance company’s decision to pay or reject a claim

is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business. Reports prepared by
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