Work Product Doctrine and Claims Adjusters
A recent case from the Eastern District of Tennessee, King v. CVS Pharmacy, Inc., et al., 2010 WL 1643256 (E.D. Tenn. Apr. 21, 2010), provides insight into the work product doctrine as it applies to insurance companies. The plaintiff moved to compel documents generated by a claims adjuster working on plaintiff’s worker’s compensation claim, arguing that they were prepared in the ordinary course of business. The defendant argued that the documents were protected by the work product doctrine because they were prepared “in anticipation of litigation.”
By Litigation Privilege Applies to Claims of Inducement to Breach
Unarco Material Handling, Inc. and Kerry Steel, Inc. had been involved in litigation that settled between the two parties. After settlement, the president of Kerry Steel began to suspect that Unarco had misled Kerry Steel in inducing it to settle. Through its attorney, Kerry Steel approached a former officer of Unarco and requested information regarding Unarco. This officer had signed a confidentiality agreement with Unarco. Kerry Steel’s attorney negotiated an indemnification agreement with the officer in which Kerry Steel agreed to indemnify the officer from any loss resulting from his giving a statement to Kerry Steel regarding actions of Unarco. The attorney also helped procure a statement from the former Unarco officer.
Work Product Is Not a Sword and Shield
In Reitz v. City of Mt. Juliet, the Middle District of Tennessee held that an employer’s reliance on an investigative report in pleadings before the court waived the attorney-client privilege and work-product protection for the underlying interview memoranda and notes authored by the internal investigator.