Work Product Privilege
Certain materials prepared in anticipation of litigation
or for trial are protected from discovery by the work
product privilege. Colorado has codified the work product
privilege at C.R.C.P. 26(b)(3), which provides:
(3) Trial Preparation: Materials. Subject
to the provisions of subsection (b)(4) of this Rule,
a party may obtain discovery of documents and tangible
things otherwise discoverable under subsection (b)(1)
of this Rule and prepared in anticipation of litigation
or for trial by or for another party or by or for that
other party’s representative (including his attorney,
consultant, surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking discovery has
substantial need of the materials in the preparation
of his case and that he is unable without undue hardship
to obtain the substantial equivalent of the materials
by other means. In ordering discovery of such materials
when the required showing has been made, the court shall
protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney
or other representative of a party concerning the litigation.
A party may obtain without the required showing
a statement concerning the action or its subject matter
previously made by that party. Upon request, a person
not a party may obtain without the required showing
a statement concerning the action or its subject matter
previously made by that person. If the request is
refused, the person may move for a court order. The
provisions of Rule 37(a)(4) [Rule 37(a)(3), C.R.C.P.]
apply to the award of expenses incurred in relation
to the motion. For purposes of this paragraph, a statement
previously made is: (A) A written statement signed
or otherwise adopted or approved by the person making
it, or (B) a stenographic, mechanical, electrical,
or other recording, or a transcription thereof, which
is a substantially verbatim recital of an oral statement
by the person making it and contemporaneously recorded.
Initial claims reports, statements, and file materials
prepared by insurance company employees are not protected
if they are prepared in the normal course of investigating
a claim. To prevent discovery of such materials, the
insurance company has the burden of showing that the
document was prepared in order to defend a specific
claim that has already arisen and that there was a substantial
probability of imminent litigation when the document
was prepared. While there is little Colorado case law
establishing when there is a substantial probability
of imminent litigation, the following events will allow
defense counsel to assert a work product privilege:
- Threat of litigation;
- Representation by counsel;
- A demand; or
- Retention of defense counsel.
While these events may allow a claim of work product privilege
to be asserted, the ultimate decision rests with the court.
Courts will not allow insurance companies to claim work
product privilege because they have hired defense counsel
if the attorney is hired to perform the same functions
that a claims adjuster normally performs, such as investigating
the claim for coverage. In addition, the work product
privilege rarely recognized in bad faith actions where
courts generally require production of the claims file
even if it contains mental impressions.
Attorney/Client Privilege
In Colorado, the attorney/client privilege is codified
in C.R.S. §13-90-107(b), which provides:
An attorney shall not be examined without the consent
of his client as to any communication made by the
client to him or his advice given thereon in the course
of professional employment; nor shall an attorney’s
secretary, paralegal, legal assistant, stenographer,
or clerk be examined without the consent of his employer
concerning any fact, the knowledge of which he has
acquired in such capacity.
The privilege only applies if all of the following
are found:
- The person claiming the privilege is or sought to
be a client;
- The person to whom the statement was made is an
attorney or an employee of an attorney;
- The communication was made by the client, in private,
for the purpose of obtaining legal assistance and
not for the purpose of committing a crime; and
- The privilege has been claimed and not waived.
Courts frequently find that no privilege exists in bad
faith actions. The Colorado Supreme Court has held that
attorney reports based on interviews with insurance company
employees and examinations of insurance company records
written during an investigation of coverage are not protected
in bad faith cases. The following actions can also act
as a waiver of the attorney client privilege:
- Voluntary disclosure;
- Selective disclosure; and
- Bad faith actions.
The uncertain status of the attorney/client and work
product doctrines suggests that adjusters should keep
in mind that all file notes may be admitted into evidence
in a subsequent action. Therefore, adjusters should
ask themselves prior to making any file notes how the
notes would sound if later read to a jury. The notes
should never contain derogatory, off-color, or humorous
remarks. In addition, adjusters should avoid making
file notes suggesting that he or she has taken that
attitude of denying all benefits. Further, if litigation
is imminent or counsel had become involved, adjusters
should make sure to note this, as defense counsel’s
assertion of a privilege can be facilitated by clear
indications of litigation within the file notes.
The information you
obtain at this site is not, nor is it intended to be,
legal advice.
You should consult an attorney for individual advice
regarding your own situation.
Copyright © 2004 by Wood,
Ris & Hames, P.C. All rights reserved.
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