The Attorney Client Privilege and Work Product Protection and the Insurance Claims File

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Many files are discoverable or capable of being discovered. Therefore, before writing any comment in a claim file the adjuster should consider that each comment written will be directed to the “Ladies and gentlemen of the jury.” If the adjuster is not ready to read the comment aloud to a jury it should not be written in the file.

Anticipation of Litigation

If an insurance investigation is done in anticipation of litigation, then that investigation file is protected from discovery by the opposing party. However, if the opposing party can demonstrate that it has a substantial need for the information and is unable to obtain the information by other means, it can be discovered.