Wade Clark Mulcahy LLP

The attorney-client privilege is constantly under attack during discovery, but a recent decision in Pennsylvania is favorable for protecting materials prepared by an in-house attorney who was also acting as a claims adjuster.
In <em>Walter v. Travelers Personal Insurance</em>, plaintiff was injured when he was run over by a tow truck. He filed a claim with Travelers, his insurer, but no benefits had been paid approximately five years later. Walker then instituted a bad faith claim against Travelers. During the litigation, plaintiff requested documents including emails, letters and an uninsured motorist worksheet prepared by Travelers’ in-house attorney. Travelers refused to produce these materials, citing to attorney-client privilege.
Judge Martin Carlson of the Middle District of Pennsylvania performed an in-camera review of the documents and determined that the documents were properly withheld as privileged. Plaintiff’s counsel argued that the attorney was acting in a dual-role as attorney and claims adjuster. However, Judge Carlson ruled that all of the documents were created while counsel was serving the client “in an attorney-client capacity, and not in some other function… such as a claims adjuster.” Thus, the documents were not discoverable to the plaintiff.
Thanks to Remy Cahn for her contribution to this post.  If you would like more information, please write to <a href="mailto:mbono@wcmlaw.com" target="_blank" rel="noopener">Mike Bono</a>.