Claims for investigations involving counsel often include correspondence concerning his or her interpretation of the facts, interpretations of the applicable law and advice. Often, claims notices or other claims file materials apply to any or parts of those communications. Because of their delicate nature, it is important to be aware of which materials will eventually be discovered. Although the security of the work product and the attorney-client privilege are commonly understood to restrict the discovery of such products, the devil is in the specifics.
Work product security claims shall be regulated by the principles set out in the Federal Rule of Civil Procedure 26(b)(3), as set out in the applicable part:
(a) The records and the physical objects. A party does not find records and tangible objects prepared in anticipation of a dispute or for trial by or for another party or its representative (including a counsel, consultant, security officer, indemnifier, insurer or agent of the other party).
However, according to Rule 26(b)(4), certain materials can be discovered if:
They can otherwise be discovered pursuant to Rule 26(b)(1);
The party demonstrates that it has a considerable need for materials to prepare its case and cannot, without undue difficulty, obtain its substantial equivalent by other means.
(b) Defense against disclosure of information. If the court orders the discovery of certain documents, it must guard against the disclosure of the mental impressions, assumptions, thoughts or legal arguments of a party’s counsel or other party’s representatives in relation to the dispute.
Therefore, the party must foresee the conflict at the time the documents were drawn up for these provisions to be extended. Materials or documents drawn up in the ordinary course of business are not covered. The responsibility is on the party withholding the discovery to prove that the documents should be given exemption from work-products. Accordingly, in order to determine if the protection is valid, the court must decide if the protection is applicable.
For the first time in the Eleventh Circuit, the Court of Milinazzo expressly discussed the application of the work product doctrine to an insurer’s examination of claims. The Court opposed a rule that would shield records constituting any part of a substantive investigation or assessment of a claim made in order to make a decision on the claim, arguing that it was in the ordinary course of the case. Co. Explicitly, the court held that the documents or items prepared before the final decision on the insured’s argument were assumed not to be a work product and that the documents created after the rejection were presumed to be a work product. The assumption may be rebutted by ‘clear proof of objective facts.’ Where complete adherence to the presumption would be impossible, a fairly comparable one.
In deciding if the presumption had been rebutted, the courts considered the length of time between the supposed date of the proposed litigation and the date of the dispute had already been brought, whether the parties were working for a settlement and whether there was a reasonable intention to prosecute one of the parties. The burden of maintaining a privilege is not, of course, discharging.
In the case of diversity actions, the attorney-client privilege is regulated by state statute. F.S. In Florida. 90.502 provides that the right of a lawyer-client arises when a client consults “a lawyer for the purpose of obtaining legal services” or a lawyer who provides legal services. But, since corporate claims of client privilege are being viewed with more skepticism, the Florida Supreme Court in Southern Bell Tel. & Tel, guy. Co. v. Deason held that, in order to claim the rights of the attorney-client, the company must show the following:
(1) the correspondence would not have been made, except for the purpose of offering legal services;
(2) the employee making the contact did so under the direction of his or her corporate superior;
(3) the Supervisor made the request of the employee as part of the efforts of the company to provide legal advice or services;
(4) the substance of the communication relates to the legal services provided and the subject-matter of the communication falls within the scope of the duties of the employee;
(5) Correspondence shall not be disseminated to those individuals who, because of the organizational structure, need to know its contents.
Again, the existence of the insurance company’s claim investigation and the role of the counsel in the investigation complicates the analysis.
Brickell Associates v. Q.B.E. Ins. The Court’s review of correspondence between the insurer and his counsel concentrated on the first of these factors, starting with the legal structure for the insurer. At the beginning, the court admitted to the Florida First District Court of Appeals in Bankers Insurance Company that interactions with the attorney, who had been employed as an insurance company investigator, were not privileged because the attorney functioned as a mere “conduct.” Next, the court acknowledged that, in Milinazzo, it had previously read the Banker sand Southern Bell decisions.
In particular, Florida appellate courts have ordered state courts to perform a camera review of a very limited proof of privilege by the proponent, and have overturned rulings in which such review has not taken place. Nor does a party meet its duty by merely requiring the court to perform a camera analysis of records that the party wishes to keep confidential—instead, the party must first provide some evidence to persuade the court that the privilege may apply.
These are just the broadest contours of the client’s right and work product security, revealing areas of claims investigation where they may be more restricted than is commonly understood. Given the possible vulnerability of the materials usually at issue, it is necessary to retain knowledge of the appropriate discoverability thresholds both before and after litigation is reasonably expected. Simply assuming that contact between a lawyer and his or her client is confidential and/or covered as a work product, there is a chance of disclosure.