Discovery: Privileges: Attorney Work Product

MONTANA SUPREME COURT DECISIONS
American Zurich Ins. Co. v. District Court (Todd) [03/13/12] 2012 MT 61 The insurer’s disclosure to its insured of a letter written by the insurer’s attorney waived work product protection where the insured, an employer of an injured worker, had no legal interest in the adjustment of the worker’s claim.  The employer’s overlapping relationship with both the insurer and the injured worker makes the insurer’s expectations of confidentiality on the part of the employer unreasonable.  Given the law expressly excluding the employer from participation in, and liability for, the claim, the insurer had no basis for either a confidentiality agreement or assurances of confidentiality.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Vulk v. Employers Compensation Ins. Co. [05/15/14] 2014 MTWCC 13 Respondent asked Petitioner for specific information regarding her allegation that Respondent had ex parte communications with certain doctors.  Petitioner objected to the discovery, arguing that this information was opinion work product.  The Court held that the information is discoverable, as Respondent must have the opportunity to prepare a defense against the allegations.
Salazar v. Montana State Fund [12/28/11] 2011 MTWCC 28 Although Petitioner argued that he should be allowed to use inadvertently disclosed letters containing reserve information because he believed the information was “vital” to proving his claim for attorney fees, he failed to prove that this should constitute an exception to the work product rule.
Vraspir v. State Fund [4/6/04] 2004 MTWCC 32 Where compliance with a request for production would require the opposing party's attorney to evaluate the evidentiary value of documents in order to comply with the request, the request invades the attorney work-product privilege. The request will therefore be limited to readily identifiable documents not requiring such exercise.
Burnside Lund v. St. Paul Fire [3/1/02] 2002 MTWCC 13 An insurer's claim file is not protected by the work-product rule just because an attorney acting on claimant's behalf makes inquiries and requests concerning her benefits or corresponds with the employer concerning her discharge from employment.
Burnside Lund v. St. Paul Fire [3/1/02] 2002 MTWCC 13 The work-product rule does not protect documents prepared in the ordinary course of claim adjustment even if prepared after there is a threat or commencement of litigation.
Burnside Lund v. St. Paul Fire [3/1/02] 2002 MTWCC 13 Opinions or mental impressions prepared by an attorney, or at the direction or on behalf of an attorney, are entitled to greater protection than other work product.
Burnside Lund v. St. Paul [12/06/01] 2001 MTWCC 62 The Court has a specific rule regarding production of claims file documents which the insurer alleges are protected by attorney-client or attorney work product privilege. Rule 24.5.324(4)-(6). The parties must follow that rule.
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. [3/16/94] 1994 MTWCC 27, WCC founds some documents protected by attorney client privilege and others protected by work product doctrine.
Haas v. State Fund [9/1/00] 2000 MTWCC 54 Where claimant argued ongoing relationship with insurer was detrimental to him and warranted lump sum of domiciliary care benefits, the only relevance of evidence of investigation into him involved the effect of the investigation upon him, including what he knew or perceived and how he reacted. Court thus granted protective order, and denied motion to compel, relating to details of investigation contained in investigator's file where such details involved attorney work product and attorney/client communications.
Church v. Travelers Indemnity Company of Illinois [5/1/97] 1997 MTWCC 23 Based on review by hearing examiner, work product protection extended to notes of claims adjuster regarding discussions with attorney and recommendations from attorney.
Church v. Travelers Indemnity Company of Illinois [4/24/97] 1997 MTWCC 23 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.
Mutchie v. Old Republic Ins. Co. [01/20/95] 1995 MTWCC 3 Materials in the adjuster’s file referencing attorney advice or specific mental impressions are protected under the attorney client privilege or work product rule. However, because this dispute concerns the treatment and handling of petitioner’s claim, and a specific issue exists as to selection of a physician, much of the adjuster’s file must be produced. Where the Montana Supreme Court has distinguished between claims files of attorneys and those of insurers, Cantrell v. Henderson, 221 Mont. 201 (1985), the work-product rule does not automatically apply to an insurer’s file. Information prepared in the regular course of a claims adjuster’s work is typically not protected.