Rapid Response Investigation: Louisiana Work Product-Privileged Information?
Like many of my peers in defending trucking companies, I am often called upon to oversee the investigation of catastrophic accidents. I doing so, I retain the experts and field adjusters to conduct the investigation. Often I am at the scene personally to interview the driver and determine what should be preserved.
The question arises from time to time whether the investigative materials of the field adjuster is the attorney work product. Let’s address some of those issues applying Louisiana law.
Issue
Under La. C.C.P. art. 1424, are an independent adjuster’s records privileged when the adjuster was hired by the defendant’s private attorney and his first report was made within days of the accident?
“…shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial ….” La. C.C.P. art. 1424
Rule
A. The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.
B. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Article 1469(4) apply to the award of expenses incurred in relation to the motion. For purposes of this Paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electronically stored, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
C. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
D. A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver if the disclosure is inadvertent and is made in connection with litigation or administrative proceedings, and if the person entitled to assert the privilege or work product protection took reasonably prompt measures, once the holder knew of the disclosure, to notify the receiving party of the inadvertence of the disclosure and the privilege asserted. Once notice is received, the receiving party shall either return or promptly safeguard the inadvertently disclosed material, but with the option of asserting a waiver. Even without notice of the inadvertent disclosure from the sending party, if it is clear that the material received is privileged and inadvertently produced, the receiving party shall either return or promptly safeguard the material, and shall notify the sending party of the material received, but with the option of asserting a waiver.
Application
Johnson
Report prepared by restaurant’s insurer’s adjuster following receipt of notice for subrogation in aquarium cleaner’s workers compensation claim was non-discoverable work product, and thus trial court erred in admitting report at trial on cleaner’s negligence claim against restaurant arising from injuries sustained by cleaner when 50-pound door fell off aquarium cabinet behind restaurant’s bar; report included adjuster’s opinion regarding restaurant’s legal liability for cleaner’s injuries, summaries of conversations that adjuster had with witnesses, and amount of insurance available to restaurant and amount reserved by insurer to pay cleaner’s claim, cleaner retained independent recollection of the circumstances surrounding his injuries, and witness and adjuster were both deposed and testified at trial.
The court said, “The document at issue here is the Liability Cap Report prepared by Mr. Leblanc following the receipt of notice for subrogation in a worker’s compensation claim. The report includes the adjuster’s opinion regarding the legal liability of the insured, what the adjuster believed the law of duty to be, and summaries of conversations Mr. Leblanc had with witnesses. The report also included the amount of insurance available to Mike Anderson’s and the amount reserved by Lafayette to pay the claim. This report is clearly a writing prepared by a party’s agent in anticipation of litigation.” Johnson v. Mike Anderson’s Seafood, Inc., App. 4 Cir.2014, 144 So.3d 125, 2013-0379 (La.App. 4 Cir. 6/11/14), writ denied 151 So.3d 586, 2014-1459 (La. 10/10/14).
Kansas City Southern Railroad
Federal courts require a fact specific approach. “When it comes to insurance claims adjuster’s files, ‘[t]he overwhelming majority of federal courts that have addressed the issue … have maintained the fact specific approach,’ which requires an inquiry into ‘whether a given item of discovery was produced in anticipation of litigation.’” Kansas City S. Ry. Co. v. Nichols Const. Co., No. CIVA 05-1182, 2007 WL 2461014, at *4 (E.D. La. Aug. 27, 2007) citing S.D. Warren Co. v. Eastern Elec. Co., 201 F.R.D. 280,283 (D.Me.2001).
Analysis
“…client’s bracing for the anticipated litigation that was to come, despite the lack of liability that was anticipated to ultimately be assessed against them.”
At this point in my career, I anticipate that every case may involved litigation (even if we believe that there is no way our driver could be at fault) because Louisiana is a pure comparative fault venue. What that means is that if a plaintiff’s attorney can prove even one percent liability, then his client will be awarded one percent of the total damages. In many other venues, if the plaintiff driver is more than fifty percent at fault, then he will not collect any damages (this rule may differ as to guest passengers). Whenever the adjuster is reporting to the attorney, at the attorney’s directives, I would argue that the reports to the attorney are work product and privileged from discovery.
This would not apply to photographs, statements or any other tangible document obtained by the investigator. That information would be discoverable. Likewise, I would argue that the plaintiff’s private investigator’s statements of witnesses or photographs should be discoverable by the defense.
The federal court approach is likely the best approach – that is to make a fact specific inquiry as to whether or not the documents were prepared in anticipation of litigation. Since the company’s privately retained attorney hired the adjuster clearly this is not an insurance company’s typical investigation into the claim as to whether or not and how much damages to pay. Rather, this appears to be the client’s bracing for the anticipated litigation that was to come, despite the lack of liability that was anticipated to ultimately be assessed against them.
The Louisiana courts may borrow from the Federal courts because the federal rule regarding attorney-client privileged information is FRCP 26(b)(3), which is very similar to the Louisiana rule, La. C.C.P. art. 1424.
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