§17.12 - Discovery Issues

• Jurisdiction: Washington

§17.12 Discovery Issues

Discovery requests by policyholders and insurers are discussed below.

(1) Policyholder requests

In an increasing number of environmental insurance coverage cases, policyholders have made wide-ranging discovery requests of insurers, seeking extrinsic evidence regarding interpretation of their insurance policies. The materials typically requested include the following:

(1)	all nonprivileged portions of the claims file, e.g. Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 295 P.3d 239 (2013). (In a first-party bad faith case, the insured is presumptively entitled to the entire claims file, and attorney-client privilege requires a showing that the insurers attorney was not involved in the insurers quasi-fiduciary function of investigating and evaluating the claim); Teck Metals, Ltd v. London Mkt. Ins., No. CV-05-411-LRS, 2010 WL 4813807 at *3 (E.D. Wash. Aug. 25, 2010);
(2)	copies of the underwriting file maintained by the insurer e.g., Bayley Constr. v. Wausau Bus. Ins. Co., No. C12-1176 RSM, 2012 U.S. Dist. LEXIS 177559 (W.D. Wash. Dec. 14, 2012);
(3)	claims, underwriting, and training manuals prepared or used by the insurer, McCallum v. Allstate Prop. & Cas. Ins. Co., 149 Wn.App. 412, 427, 204 P.3d 944, review denied, 166 Wn.2d 1037 (2009) (finding discretionary entry of a protective order and its subsequent vacation was appropriate); Woo v. Firemans Fund Ins. Co., 137 Wn.App. 480, 154 P.3d 236 (2007) (requiring a fact-specific inquiry and concluding claims-handling manuals were not trade secrets with a compelling interest to override the publics interest);
(4)	advertising, sales, and promotional materials provided by the insurer to prospective policyholders or agents;
(5)	information regarding reinsurance obtained by the insurer, Isilon Sys., Inc. v. Twin City Fire Ins. Co., No. C10-1392MJP, 2012 WL 503852, 2012 U.S. Dist. LEXIS 18626 at *8-9 (W.D. Wash. Feb. 15, 2012); Heights at Issaquah Ridge Owners Assn v. Steadfast Ins. Co., No. C07-1045RSM, 2007 WL 4410260, 2007 U.S. Dist. LEXIS 95213 at *12 (W.D. Wash. Dec. 13, 2007); Teck Metals, 2010 WL 4813807 at *3;
(6)	internal memoranda and documents regarding how the insurer has interpreted policy provisions;
(7)	information regarding the reserves set aside by the insurer for the policyholders claims, e.g., Isilon Sys., 2012 U.S. Dist. LEXIS 18626 at *6-8; c.f., Issaquah Ridge, 2007

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