November 18, 2014 Articles

Are Insurance Investigative Documents Work-Product-Protected?

There is a lack of uniformity in federal courts’ application of the work-product doctrine in third-party accident cases.

By Steven M. Richard

The Federal Rules of Civil Procedure allow for broad discovery to ensure the full and fair resolution of cases on their merits. Yet, the rules “endeavor to ‘preserve a zone of privacy’ in which lawyers, insurers, and other representatives of litigants may develop legal theories and strategies uninhibited by the possibility that an adversary may become privy to the resulting documents, by protecting certain work product prepared for the litigation.” Weber v. Paduano, No. 02-3392, 2003 U.S. Dist. LEXIS 858, at *8 (S.D.N.Y. Jan. 22, 2003). Under Rule 26(b)(3), the operative issue in the work-product doctrine is whether the document was “prepared in anticipation of litigation or for trial.” Federal law governs the applicability of work-product protection in all federal court actions, including cases invoking diversity jurisdiction.

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