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The Application of the Work-Product Doctrine to an Insurance Claim File


This issue comes up frequently. Normally, in the context of interrogatories and request for production of documents. If you practice personal injury law, either plaintiff or defense, you have likely seen a request for a Defendant to produce “any and all” information prepared or related to the claim or accident. Among one of many objections, one that the request is overly broad, the work-product doctrine is often cited. This blog addresses the work-product objection only.

The work-product doctrine should not be thrown around loosely. It requires a fact intensive inquiry.

To begin with, the objecting (or withholding) party must assert the claim of work-product and describe the nature of the information not produced or disclosed and do so without revealing information that is privileged or protected, but will still enable the other side, or other parties, to assess the claim. The law does not allow the inquiry to stop at, “objection, work-product.” The party withholding items under a claim of the work-product bears the burden of establishing the information should be withheld.

The work-product doctrine protects discovery of information prepared in anticipation of litigation or for trial. Whether a document or information was prepared in anticipation of litigation or for trial is based on whether the anticipated litigation or trial was the basis for preparing the information as opposed to creating for an ordinary business purpose.

The analysis focuses on who prepared the documents, the nature of the documents, and when the documents were created. Generally, the withholding party must identify “a trigger event,” which may include the involvement of an attorney on behalf of the claimant. In other words, when the carrier receives notice the claimant has counsel.

It’s an interesting and potentially complex issue. Arguably, every time a work-product objection is made, the issue could come up as to whether the objection is reasonable and be the subject of further motions. However, both sides should be cautious because just as work-product objections should not be “thrown around” loosely, neither should motions to compel as either side may be subject to sanctions under Rule 37. I believe a good starting point is to make sure the propounded discovery is narrowly tailored to address the issues in the lawsuit.

Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.

This blog is made available by Santel | Garner for educational purposes only as well as to provide general information and a general overview of the law, not provide specific legal advice. By using this blog and website, you understand that there is no attorney-client relationship between you and Santel | Garner . This blog and website should not be used as a substitute for competent legal advice from a licensed attorney in your state.