A recent South Carolina District Court decision on a motion to compel discovery held that reports prepared in the ordinary course of business of adjusting insurance claims are not protected as “work product” and must be produced.
Federal law governs the work product doctrine. The doctrine protects from discovery any “documents and tangible things that are prepared in anticipation of litigation or for trial.”
Plaintiff Roger Gilliard of Charleston filed a complaint in March 2012, alleging that an accidental fire burned down his home but that his homeowners’ insurer, Great Lakes, refused to pay out benefits. During discovery, a dispute arose concerning two subpoenas served on agents of Great Lakes, who Gilliard contended did not fully respond to his requests for production of documents.
At issue was a number of email messages between Great Lakes’ insurance investigator and numerous other parties dated after the filing of the complaint. Great Lakes argued the information contained in the emails in question was covered under work-product protection.
Typically, such messages written after litigation has commenced would trigger the work-product doctrine, Judge David C. Norton said, but in this case he found that the email messages did not reveal any specific research or litigation strategy and thus didn’t warrant protection.
Further, the judge noted that because an insurance company has a duty to investigate and evaluate claims made by its customers, files which contain related documents usually cannot be automatically given work-product protection.
“Because the ‘driving force’ behind (the insurance investigator’s) work was the ordinary course of business rather than litigation, the entire expense report must be produced,” Norton said.
The 10-page case is Gilliard v. Great Lakes Reinsurance (U.K.) PLC (Lawyers Weekly No. 002-07-013) and can be read at sclawyersweekly.com.