Wade Clark Mulcahy LLP

<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2019/06/Paladino-v.-Auletto.pdf">Paladino v. Auletto</a></em>, the New Jersey appellate division had an opportunity to clarify the rule governing the discoverability of documents prepared by an investigator retained by a defendant’s insurance representative prior to litigation commencing.</p>
<p style="text-align: justify;">By way of background, following an accident at the insured’s facility, the insurer retained an investigator to investigate the accident, which included taking photographs of the accident site, as well as taking recorded statements of the insured’s employees.  After the plaintiff commenced suit, the plaintiff sought to compel this information, which the defendant refused to produce claiming privilege under the work product doctrine.</p>
<p style="text-align: justify;">In determining whether the plaintiff was entitled to the requested information, the appellate division relied on Court Rule 4:10-2(c) that allows a party to discover documents prepared in anticipation of litigation only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the case and is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.</p>
<p style="text-align: justify;">Prior to this decision, many parties relied on an older case from the appellate division which appeared to have created a bright line rule in favor of the discovery of documents prepared prior to a lawsuit being filed.  However, in <em>Paladino</em>, the appellate division found that the investigator certified that the documents he prepared were in anticipation of litigation.  Accordingly, the court remanded the matter back to the trial court to follow Rule 4:10-2(c).  The court instructed that the trial court must determine whether the materials were prepared in anticipation of litigation.  If so, the two prong test of Rule 4:10-2(c) must be satisfied before a party can be compelled to produce documents which are claimed to be privileged pursuant to the work product doctrine.</p>
<p style="text-align: justify;">Thus, this case appears to provide more protection to an insurer’s pre-suit investigations by potentially shielding these investigations under the work product doctrine.</p>
<p style="text-align: justify;">Thank you to Mike Noblett for his contribution to this post.  Please email <a href="mailto:chayes@wcmlaw.com">Colleen E. Hayes</a> with any questions.</p>