<%@LANGUAGE="JAVASCRIPT" CODEPAGE="1252"%> Robert C. Kemp

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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

1998 MTWCC 35W

WCC No. 9801-7897


ROBERT C. KEMP

Petitioner

vs.

SEDGWICK CLAIMS

Respondent/Insurer for

SLETTEN CONSTRUCTION COMPANY

Employer.


ORDER ON IN CAMERA INSPECTION

1 In prior discovery orders, the Court has discussed the protection afforded by the attorney/client privilege and work-product doctrine. Blount v. Conagara, Inc., WCC No. 9304-6769 (March 16, 1994); Adels v. Cigna Ins. Co., WCC No. 9307-6831 (February 16, 1994 and March 10, 1994); Yager v. Montana Schools Group Ins., WCC No. 9308-6872 (March 14, 1994). The review of the documents in this matter has been conducted pursuant to the guidelines set forth in those decisions.

2 Respondent provided the Court with documents identified from 1 through 17. The Court's hearing examiner determined the status of each document.

3 Document 7 consists of a one page letter with 28 pages of attachments to Mr. Doerr from Mr. Wills. Included in the attachments are a number of Court decisions which account for 23 of the 28 pages. Counsel for the petitioner has access to all of these documents without their production by respondent, however, respondent should advise counsel of the citations. The remainder of document 7 is protected by the attorney/client privilege.

4 Document 9 consists of a one page letter by Mr. Luck and a second document which is not referred to in the letter. It has no names or information on the page. If any part of that document is considered non-discoverable, respondent must provide the Court with a redacted copy and an explanation of why it believes it is protected. Otherwise, the document (not the letter) shall be produced.

5 Documents 15, 16 and 17 are surveillance reports to which the respondent objects. In Yager v. Montana Schools Group Ins., WCC No. 9308-6872 (March 14, 1994), the Court found that the protection was waived "with respect to matters covered in his (the investigator) testimony." Following the reasoning in Yager, respondent is directed to produce those portions of the surveillance report which concern any matter to which the investigator may testify at a trial. The Court has the complete reports in its file. Respondent must provide to the hearing examiner a copy of the reports with those parts redacted which it believes to be non-discoverable.

6 The following chart summarizes the disposition of the documents.

NUMBER
DATE
DESCRIPTION/PAGES
STATUS
1.
1/9/98
Kelly Wills letter 1 page
Attorney/client
2.
1/13/98
Kelly Wills letter 1 page
Attorney/client
3.
12/16/97
Kelly Wills letter 3 pages
Attorney/client
4.
12/16/97
Claim review - G. Doerr 1 page
Work product
5.
12/16/97
Kelly Wills telefax cover sheet
1 page
Attorney/client
6.
12/03/97
Kelly Wills telefax cover sheet
1 page
Attorney/client
7.
11/24/97
Kelly Wills letter 29 pages

Attorney/client in part-
produce list of
decisions attached
8.
11/20/97

11/23/97

11/26/97
File memos, claim review the 20th and 26th by Doerr
Produce 11/23/97-
attorney/client applies to 11/20/97 & 1/26/97
9.
10/14/97
Brad Luck letter to Doerr 1 page
letter and second document - "comm.journal"
Letter, attorney/client-
produce "journal"
10
5/12/97
Brad Luck letter - Panagopoulos 1 page
Attorney/client
11.
5/12/97
Brad Luck letter - Panagopoulos 1 page
Attorney/client
12.
2/14/97
Brad Luck letter -Panagopoulos 1 page
Attorney/client
13.
11/05/96
Memo conversation w/Luck
1 page
Attorney/client
14.
10/03/96
Panagopoulos letter to Luck
1 page
Attorney/client
15.
8/24/96
Surveillance report 6 pages
Produce in part
16.
8/12/96
Surveillance report 8 pages
Produce in part
17.
7/26/96
Surveillance report 7 pages
Produce in part

7 Respondent must comply with this Order on or before May 11, 1998.

DATED in Helena, Montana, this 4th day of May, 1998.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Thomas J. Murphy
Mr. Kelly M. Wills (Enclosure: In Camera documents)
Submitted: April 13, 1998

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