Weighing Work Product Claims by Insurance Companies — No Bright Line Test

From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011):

As the Fourth Circuit has explained, "the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product immunity." Nat'l Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., Inc, 967 F.2d 980, 984 (4th Cir. 1992) (quotation omitted). Rather, the document:

must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation. Thus, we have held that materials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3).

Id. (emphasis in original) (citations omitted). This "because of" standard was "designed to help district courts determine the driving force behind the preparation of the work product" and distinguish between that which is created in anticipation of litigation and that which is created in the ordinary course of business. RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746-47 (E.D. Va. 2007).

With respect to work product claims by insurance companies, "[t]he nature of the insurance business requires an investigation prior to the determination of the insured's claim." State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984). Thus, there is no bright-line test for when work product protection applies for insurance companies, and instead courts must undertake a case-by-case analysis. Id. at 238. "This approach realistically recognizes that at some point an insurance company shifts its activity from the ordinary course of business to anticipation of litigation." Id. The "pivotal point" is when the probability of litigation becomes "substantial and imminent," or stated otherwise, when litigation becomes "fairly foreseeable." Id.

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