The facts are routine – a set of circumstances you know well. An accident of some sort occurs, let’s say a car accident, the claim is reported
The facts are routine – a set of circumstances you know well. An accident of some sort occurs, let’s say a car accident, the claim is reported, and an adjuster is assigned to investigate the loss. So far, so good – a prompt response by the insurer. The investigation moves forward and no stone is left unturned as the investigator makes every effort to understand the cause of the accident and the resulting damages. As part of the investigation, routine measurements are taken, interviews are conducted, notes and opinions are recorded, and simple non-destructive testing occurs. The investigator is aware the injured party is represented and communicates with the counsel in hopes of achieving an early settlement. No resolution is reached and the inured party files a lawsuit. Now, in the midst of discovery, the injured party’s counsel has requested the entire contents of the investigator’s work file, including all his raw data, photographs and his opinions as to the cause of the accident. Must the Defendant produce the investigator’s file? If so, must the Defendant produce all of the file or are certain portions priviledged? This article will discuss these issues and make several practical suggestions to help guide pre suit investigation.
This is the situation many Defendants face as a result of an insurer’s pre suit investigations. The investigator’s existence and certain information collected by the investigator is not automatically protected from discovery by the Plaintiff. The question then is how much – and exactly what type of – information must be produced in discovery. Georgia law provides that materials developed in anticipation of litigation are generally not discoverable. See O.C.G.A. § 9-11-26(b)(3). O.C.G.A. § 9-11-26(b)(3) provides that “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Courts interpreting this statute have held that if a “court is satisfied that the required showing has been made, the trial court may order the production, after an in-camera examination (or other acceptable agreement between the parties) with a view toward protecting against the disclosure of mental impressions, conclusions, opinions, or legal theories.” Tobacco Road, inc. v. Callaghan, 174 Ga. App. 539, 540 (1985).
For nearly three decades, Georgia courts have consistently held that production of an investigator’s file constitutes a per se breach of the trial preparation/work product doctrine and the attorney-client privilege. For example, in Warmack v. Mini-Skools, Ltd., 164 Ga. App. 737 (1982), a landmark decision on the scope and application of the trial preparation doctrine, the Georgia Court of Appeals found that an inquiry by a potential claimant regarding the existence of accidental insurance coverage was sufficient grounds to believe that litigation was imminent, thereby rendering an insurance claim’s adjuster’s witness statements and notes protected from discovery as material prepared in anticipation of litigation.
Despite this precedent, the party seeking the file material will often assert that it is not the adjuster’s mental impressions, conclusions, or legal theories he or she is seeking, but rather the facts and raw data gained during the investigation. In our car accident example, let’s assume that the investigator learned during his interviews that the accident occurred due to failure of the vehicle’s brakes. The investigator then drove the vehicle, applied the brakes, and discovered that the brakes were non-responsive. Is this finding discoverable, or is it priviledged because the testing was done in anticipation of litigation? The party seeking this information will assert that the post accident status of the brakes are facts, exclusive of impressions, conclusions, or theories asserted by the investigator performing and recording the results of the tests, and therefore discoverable.
Under Georgia law, “a party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. O.C.G.A. § 9-11-26. The Georgia Court of Appeals in Clarkson Indust. Inc. v. Price, 135 Ga. App. 787 (1975), interpreted O.C.G.A. § 9-11-26(b)(3) to require that the documents and tangible things to have been both created in anticipation of litigation AND contain mental impressions, conclusions, opinions, or legal theories of the person preparing them in order to be protected from discovery. If the trial court determines that either element is absent, the information must be produced. In the event both elements are present, the information is priviledged unless the party seeking the information can establish a substantial need and undue hardship.
It is important to note that “substantial need” and “undue hardship” are considerable burdens placed on a party seeking to obtain undeniably protected work product. Courts, in attempting to define “substantial need” and “undue hardship,” have held that more than the mere assertion of a party that the information sought is necessary to the preparation of the case and is not available by any other means is required. For example, in Ga. Int’l Life Ins. Co. v. Boney, 139 Ga. App. 575, 581 (1976), the Georgia Court of Appeals, in finding that the moving party did not make the requisite showing of substantial need and undue hardship, noted that something more than the bare assertion that “the [information is] necessary to the preparation of Plaintiff’s case, and that such information is not available to Plaintiff by any other means” is required.
Returning to the car accident example, let’s assume that the investigator recorded his findings without providing his opinion as to the ultimate cause of the accident. In that case, the trial court would likely determine that the facts alone, absent any opinions, would be discoverable. Assume, in contrast, that the investigator recorded his findings, along with his impression that the condition of the brakes did not ultimately cause the accident. The vehicle’s brakes were then repaired, making the original pre-accident condition of the vehicle unavailable to the plaintiff’s attorney. In that instance, although the investigator’s report contains both fact and opinion, opposing counsel will assert both a substantial need for the report and undue hardship if the report is not made available. Even at this stage, the information must still be screened by the trial court to the extent it contains the investigator’s mental impressions or opinions.
As indicated above, certain opinions, mental impressions, and conclusions of an investigator will be protected so long as they were made in anticipation of litigation. Other information, such as the facts, especially when unavailable to the other side, will be subject to disclosure under the substantial need/undue hardship test. Unfortunately, this decision will often be made by the trial judge after many briefs have been filed and argued on the subject, all of which have increased the cost to defend the case. In order to avoid this expense, it is crucial for the investigator to follow certain guidelines so that there is less chance the opposing side will seek to obtain the information in the future.
First, when possible, involve an attorney early in the investigation process to ensure proper methods are followed to avoid spoliation of evidence and protect investigative findings from future disclosure. Although involvement of an attorney is not always possible or practical, the ability to subsequently assert a privilege as to the results of the investigation will be markedly stronger if the thoughts, impressions, and general course of investigation include attorney involvement. If attorney involvement is simply not possible, ensure that the investigator thoroughly populates their report with analysis and opinions. A reviewing court is unlikely to permit disclosure of an investigator’s opinions and analysis; the more that the facts are intertwined with these opinions and analysis, the more difficult it will be for a reviewing court to separate the two. Finally, always assume that litigation is anticipated by the other side and govern your investigator’s actions accordingly. Properly applied, this will prevent spoliation of evidence; will ensure the preservation of evidence; and provide a future basis from protecting investigative findings.