Discovery: Privileges: Attorney Client

American Zurich Ins. Co. v. District Court (Todd) [03/13/12] 2012 MT 61 Where two parties are engaged in a joint defensive effort against a claim, the attorney-client privilege may attach if correspondence to one is shared with the other.  That is not the case between an employer and a workers’ compensation insurer.  Despite their common interests in some areas, they do not share a common legal interest in the adjustment of an employee’s claim for compensation for which the insurer is exclusively liable.  The insurer in this case bore direct liability to the injured worker.  The employer’s role was similar to that of a witness; it is not a co-litigant and bears no liability.

Lamb v. District Court, 2010 MT 141 After the parties entered into a Stipulation for Judgment in which they agreed the claim was compensable and the insurer was liable for attorney fees and a penalty, the claimant filed a bad faith action in District Court and sought discovery of documents including attorney correspondence, since Defendant asserted the “advice of counsel” defense where the attorney-client privilege does not apply if the insurer directly relies on advice of counsel as a defense to a bad faith charge.

Haas v. State Fund [9/1/00] 2000 MTWCC 54 Letter from counsel for State Compensation Insurance Fund to administrator of Tort Claims Unit of State of Montana regarding notice of tort claim filed by workers' compensation claimant was an attorney-client communication and thus absolutely privileged from discovery. Hearing Examiner for Workers' Compensation Court would be made available if counsel for claimant wished confirmation that letter was in fact attorney-client communication.
Kemp v. Sedgwick Claims [5/6/98] 1998 MTWCC 35A Following respondent's objection to production of certain documents, hearing examiner conducted review of documents to determine what they were. Applying standards set out in earlier cases, e.g. Blount v. Conagara, Inc. 1994 MTWCC 24, WCC founds some documents protected by attorney-client privilege and others protected by work-product doctrine.
Church v. Travelers Indemnity Company of Illinois [4/24/97] 1997 MTWCC 22 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; Yager 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.