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IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
1997 MTWCC 22
WCC No. 9702-7698
STEVE
CHURCH
Petitioner
vs.
TRAVELERS
INDEMNITY COMPANY OF ILLINOIS
Respondent/Insurer
for
FOOD
SERVICES OF AMERICA
Employer.
ORDER ON IN CAMERA INSPECTION
Summary: Following
petitioner's motion to compel discovery, hearing examiner reviewed documents
produced in camera relating to respondent insurer's claim of attorney-client
privilege and work product protection.
Held: Applying
the standards regarding attorney-client privilege and work product articulated
in earlier WCC decisions (Adels v. Cigna Ins. Co., WCC No. 9307-6831;
Blount v. Conagera, Inc., WCC No. 9304-6769; Yaeger v. Montana
Schools Group Ins. Co., WCC 9308-6872; Wetzel v. Ash Grove Cement,
WCC No. 9108-6216), hearing examiner ordered production of several categories
of documents, but held the following documents protected by work product
doctrine: insurer's reserve information and rationale, notes regarding
general settlement and discussion with the employer, mediation, estimated
liability sheet, and letters setting out internal discussion about settlement.
Attorney-client privilege and work product held to protect claims adjuster's
notes regarding discussion with another claims adjuster and employer regarding
liability in case.
Topics:
Discovery: Claims File.
Applying the standards regarding attorney-client privilege and work
product articulated in earlier WCC decisions (Adels v. Cigna Ins.
Co., WCC No. 9307-6831; Blount v. Conagera, Inc., WCC
No. 9304-6769; Yaeger v. Montana Schools Group Ins. Co., WCC
9308-6872; Wetzel v. Ash Grove Cement, WCC No. 9108-6216),
hearing examiner ordered production of several categories of documents,
but held the following documents protected by work product doctrine:
insurer's reserve information and rationale, notes regarding general
settlement and discussion with the employer, mediation, estimated liability
sheet, and letters setting out internal discussion about settlement.
Attorney-client privilege and work product held to protect claims adjuster's
notes regarding discussion with another claims adjuster and employer
regarding liability in case.
Discovery: In Camera
Inspection. Applying the standards regarding attorney-client privilege
and work product articulated in earlier WCC decisions (Adels v.
Cigna Ins. Co., WCC No. 9307-6831; Blount v. Conagera, Inc.,
WCC No. 9304-6769; Yaeger v. Montana Schools Group Ins. Co.,
WCC 9308-6872; Wetzel v. Ash Grove Cement, WCC No. 9108-6216),
hearing examiner ordered production of several categories of documents,
but held the following documents protected by work product doctrine:
insurer's reserve information and rationale, notes regarding general
settlement and discussion with the employer, mediation, estimated liability
sheet, and letters setting out internal discussion about settlement.
Attorney-client privilege and work product held to protect claims adjuster's
notes regarding discussion with another claims adjuster and employer
regarding liability in case.
Discovery: Privileges:
Attorney client. Applying the standards regarding attorney-client
privilege and work product articulated in earlier WCC decisions (Adels
v. Cigna Ins. Co., WCC No. 9307-6831; Blount v. Conagera, Inc.,
WCC No. 9304-6769; Yaeger v. Montana Schools Group Ins. Co.,
WCC 9308-6872; Wetzel v. Ash Grove Cement, WCC No. 9108-6216),
hearing examiner ordered production of several categories of documents,
but held the following documents protected by work product doctrine:
insurer's reserve information and rationale, notes regarding general
settlement and discussion with the employer, mediation, estimated liability
sheet, and letters setting out internal discussion about settlement.
Attorney-client privilege and work product held to protect claims adjuster's
notes regarding discussion with another claims adjuster and employer
regarding liability in case.
Discovery: Privileges:
Work product. Applying the standards regarding attorney-client privilege
and work product articulated in earlier WCC decisions (Adels v.
Cigna Ins. Co., WCC No. 9307-6831; Blount v. Conagera, Inc.,
WCC No. 9304-6769; Yaeger v. Montana Schools Group Ins. Co.,
WCC 9308-6872; Wetzel v. Ash Grove Cement, WCC No. 9108-6216),
hearing examiner ordered production of several categories of documents,
but held the following documents protected by work product doctrine:
insurer's reserve information and rationale, notes regarding general
settlement and discussion with the employer, mediation, estimated liability
sheet, and letters setting out internal discussion about settlement.
Attorney-client privilege and work product held to protect claims adjuster's
notes regarding discussion with another claims adjuster and employer
regarding liability in case.
On March 31, 1997, petitioner's
motion to compel discovery was filed. Respondent has responded and submitted
for an in camera review the documents listed in the chart below.
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, Adels v. Cigna Ins. Co., WCC No. 9307-6831, Yaeger
v. Montana Schools Group Ins., WCC No. 9308-6872, Wetzel v. Ash
Grove Cement, WCC No. 9108-6216. The review herein has been conducted
pursuant to the guidelines laid down in those decisions and the disposition
for each document is reflected in the following chart.
| Document
No. |
Date
|
Description
|
Disposition
|
000014 |
07/12/95 |
Note
regarding description of employer
and job |
Produce
document |
000015 |
07/12/95 |
Note
regarding description of employer and job |
No
objection to any entry on page - Produce
document |
000023 |
12/11/95 |
Correspondence
between Diane Nelson and another claims adjuster |
Produce
document |
000024 |
12/11/95 |
Correspondence
between Diane Nelson and another claim's adjuster |
No
objection to any entry on page - Produce
document |
000026 |
02/13/96 |
Note
regarding respondent and its insurer's reserves |
Redact
information regarding reserve rationale, work product - Produce redacted
document |
000027 |
02/21/96 |
General
reserve rationale of file |
Redact
information concerning General Reserve Rationale - Produce redacted
document
|
000033 |
06/21/96 |
Note
regarding general settlement
authorization |
Produce
document |
000039 |
07/23/96
&
07/26/96
|
Estimate
rationale note from claim's adjuster to Diane Nelson and notes regarding
general settlement
and discussions with employer |
Work
product - Production
denied |
000042,
000044 & 000045
|
|
|
These
documents were not produced for review |
000046 |
10/23/96
&
12/07/96
|
Mediation
information and notes
regarding authority to make payment from supervising claim's adjuster |
Redact
mediation information -Produce redacted document |
000048 |
02/05/97 |
Notes
regarding deadlines and strategies regarding case of claim's adjuster,
Diane Nelson |
Produce
document |
000049 |
02/07/97 |
Claim's
adjuster notes regarding discussion with another claim's adjuster
and employer |
Attorney
Client/Work
Product - Production denied |
000050
-000056
|
|
|
Documents
not produced for review |
000077 |
05/17/95 |
Statistic
sheet containing information
regarding internal operations of the employer and Travelers Insurance
Company |
Redact
insurance policy numbers, bank codes, and states covered - Produce
redacted document |
000079 |
05/12/95 |
Statistic
sheet containing information
regarding internal operations of the employer and Travelers Insurance
Company |
Redact
insurance policy numbers, bank codes, and states covered - Produce
redacted document |
000082 |
Unknown |
Food
Services of America Workers'
Compensation Account forms |
Redact
insurance policy numbers, bank codes, and states covered - Produce
redacted document |
000087 |
01/23/96 |
Letter
from Diane Nelson, Travelers,
to Kevin Malley, Food Services of America |
Produce
document |
000088 |
02/16/96 |
Letter
from Diane Nelson, Travelers,
to Kevin Malley, Food Services of America |
Produce
document |
000092 |
05/15/96 |
Letter
from Diane Nelson, Travelers,
to Kevin Malley, Food Services of America |
Produce
document |
| 000093 |
07/07/95 |
Letter
regarding reserve/advisory report from Diane Nelson,Travelers, to
Joe Lhamon, Risk Manager, Food Services of America |
Work
product - Production denied |
| 000094 |
07/06/95 |
Estimated
liability sheet and reserve report of Travelers Insurance Company
and Food Services of America |
Work
product - Production denied |
| 000095 |
02/23/96 |
Letter
regarding reserve/advisory report from Diane Nelson, Travelers,
to Tim Holland, Food Services of America |
Work
product - Production denied |
| 000096 |
02/21/96 |
Estimated
liability sheet and reserve report of Travelers Insurance
Company and Food Services of America |
Work
product - Production denied |
| 000104 |
06/24/96 |
Letter
from Diane Nelson, Travelers,
regarding authorization for settlement to Tim Holland, Vice President
of Operations, Food Services of America |
Work
product - Production denied |
| 000216 |
02/13/96 |
Letter
from Diane Nelson, Travelers, to Kevin Malley, Food Services of America |
Produce
document |
| 000217 |
02/14/96 |
Letter
from Kevin Malley, Director of Operations, Food Services of America,
to Diane Nelson, Travelers Insurance |
Produce
document |
ACCORDINGLY, IT IS HEREBY
ORDERED that:
Respondent must produce numbers
000014, 000015, 000023, 000024, 000026 (with information regarding reserve
rationale redacted), 000027 (with General Reserve Rationale redacted),
000033, 000046 (with mediation information redacted), 000048, 000077,
000079 (with insurance policy numbers, bank codes and states covered redacted),
000082 (with insurance policy numbers, bank codes and states covered redacted),
000087, 000088, 000092, 000216 and 000217.
This Order is signed by the
Hearing Examiner at the direction of the Judge of the Workers' Compensation
Court.
DATED in Helena, Montana,
this 24th day of April, 1997.
(SEAL)
/s/ Clarice
V. Beck
CLARICE V. BECK
Hearing Examiner
c: Mr. James G. Edmiston
Mr. Dylan E. Jackson
Submitted: April 10, 1997 |
