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Products Liability e-Alert: Insurance Investigations |
| When Insurance Investigations of Accidents or Products
Performed Prior to Litigation are Considered Work Product |
Rule 26(b)(3) of the Federal Rules of Civil Procedure sets out the work product
doctrine. It provides that materials "prepared in anticipation of litigation . .
. by or for [a] party's representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent)" are subject to discovery
only upon a showing of "substantial need" and the requesting party's inability
to obtain the materials by other means. Attorneys frequently invoke this rule in
products liability cases to protect tests and analyses performed by experts or
investigators of an allegedly defective product or an accident scene.
Frequently, though, the defendant's insurance investigator examines the
product or inspects the scene before a lawsuit is filed and/or before defense
counsel is notified of the accident. In this situation, are the insurance
investigator's conclusions protected from discovery by the work product
doctrine? It depends, but there are steps that manufacturers and insurers can
take to make it more likely that an insurance investigator's conclusions will
not be subject to discovery.
Federal courts have taken three approaches
to applying the work product doctrine to insurance investigation, which
includes:
- The first (most restrictive) approach denies protection to insurance reports
that are not prepared under the guidance of an attorney.[i]
- The second (least restrictive) approach assumes that any documents prepared
by an insurance investigator immediately following an accident are documents
made in anticipation of litigation and thus fall within the purview of the work
product doctrine.[ii]
- The third (middle ground) approach employs a case-by-case analysis to
determine whether documents prepared by an insurance investigator are made in
anticipation of litigation.[iii] Many states have either adopted one of these
three approaches, or have relied upon federal cases interpreting the work
product doctrine as persuasive authority.[iv]
In the third approach
discussed above, the determinative question is whether the prospect of
litigation was the primary motivating purpose behind the investigation by the
insurer, and the insurer’s creation of a particular document related thereto.[v]
Several facts support applying the work product doctrine to such an insurance
investigation: (1) the documents were prepared at the request of counsel; (2)
counsel was the expected recipient at the time the documents were prepared; and
(3) the documents were prepared after plaintiff filed suit.
What this
means to you: Given these factors, manufacturers can protect from discovery
reports prepared by insurance investigators by retaining counsel immediately
after an accident has occurred, and having counsel direct the efforts of
insurance investigators in the accident investigation. Insurers can protect
their investigations from discovery by addressing documents to counsel and
segregating claim files into trial preparation materials and non-trial
preparation materials.[vi]
In short, manufacturers should not assume that
insurance investigations are protected work product under Fed. R. Civ. P.
26(b)(3). To protect investigative reports from discovery in litigation, it is
important to retain counsel immediately after an accident involving the
manufacturer’s product(s) occurs, and involve counsel in the accident
investigation.
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Endnotes[i] Thomas Organ Co. v. Jadranska Slobodna Plovibda, 54
F.R.D. 367 (N.D. Ill. 1972).
[ii] Fontaine v. Sunflower Beef Carrier,
Inc., 87 F.R.D. 89 (E.D. Mo. 1980); Almaguer v. Chicago, Rock Island
& Pac. F.R.D., 55 F.R.D. 147 (D. Neb. 1972).
[iii] Pasteris v.
Robillard, 121 F.R.D. 18 (D. Mass. 1988); Sham v. Hyannis Heritage House
Hotel, Inc., 118 F.R.D. 24 (D. Mass. 1987).
[iv] See, e.g., Meszar
v. Horan, 10 Mass. L. Rptr. 682, 685 (1999).
[v] City of Worcester
v. HCA Mgmt. Co., Inc., 839 F. Supp. 86, 88 (D. Mass. 1993).
For
more information regarding this alert, please contact any of the following
attorneys listed below.
Mary L.
Barrier
816.691.2704
Rebecca
D. Bishop
314.259.4583
Michelle
L. Corrigan
314.259.4571
Thomas
H. Davis
816.691.3439
Steven
G. Emerson
816.691.3407
John G.
Hansen
816.691.2413
Leonard
J. Johnson
816.691.2723
Shane
C. Mecham
816.691.3164
Alexander
B. (Sandy) Robb
816.691.2454
Ryan
Vacca
314.259.4523
Ronald
P. Williams
316.268.7914
Bradley J.
Yeretsky
816.691.2333
Stinson Morrison Hecker LLP's Products
Liability e-Alert is a periodic e-mail service designed to provide current
information on legal developments affecting businesses in regards to products
liability matters. It is intended to provide general information only, and does
not constitute a legal opinion or legal advice.
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