ORDER PARTIALLY DENYING MOTION TO COMPEL; ORDER
DENYING MOTIONS FOR SANCTIONS
Richard Blount (Blount), has filed a motion to compel
production of certain documents. Both parties have also filed
motions for sanctions. The motions have been briefed and are
now ready for decision.
Motion To Compel Production
seeks to compel production of ten documents from
respondent's claim file. Respondent has refused to
produce the documents, claiming protection under the
attorney-client privilege and the work-product doctrine. The
documents are identified as follows:
88, 100-102, 109, 110: Letters of counsel for insurer to
90, 91, 93 & 95: Letters of the insurance adjuster to
not clear in the Court record that the actual identities of
persons receiving the letters were provided as directed in
this Court's January 7, 1994 Order. Respondent at page 4
of its response does advise that "the privileged
documents refer to the names of witnesses who have been named
in discovery responses. All are available to testify."
documents have been reviewed by the Court's law clerk and
hearing examiner, who have provided descriptions of the
documents for purposes of this Order.
first group of documents are from counsel for insurer to
employees of the employer. Respondent argues that the letters
from its attorney are attorney-client privilege. While
liability insurers often provide counsel to their insured,
this is not such a case. Under the Workers' Compensation
Act, an insured employer is immune from "any liability
whatsoever for the death of or a personal injury to an
employee covered by the Workers' Compensation Act. . .
." Under the Act, the insurer is directly liable to the
injured employee. Section 39-71-407, MCA. The insurer's
attorney represents the insurer, not the employer.
from counsel to third persons may come under the protection
of the work-product doctrine. Kuiper v. District
Court, 193 Mont. 452, 632 P.2d 694
(1981). However, such communications to third
parties may also amount to a waiver of the protection.
American Standard, Inc. v. Bendix Corp., 71 F.R.D.
443, 446 (1976). In this situation, the protection
has not been waived. Counsel's letters were sent to
workers of claimant's employer. The employer and insurer
may have similar interests in this proceeding. The employer
has an interest in resisting unfounded claims which could
increase the employer's experience rating and drive up
premiums for workers' compensation coverage.
"Disclosure to parties with a common interest in the
litigation does not waive work product immunity because it
can be assumed that parties with a common interest will not
disclose to opposing parties." Id. at 447.
Accordingly, the correspondence between respondent's
counsel and the third parties did not waive the work-product
claims that even if the letters are work-product, they should
be produced because he has substantial need for them and
cannot obtain the equivalent of the materials. Ordinary work
product enjoys a qualified protection, and is discoverable
"upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the
party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the
materials by other means." Rule 26(b)(3), M.R.Civ.P.,
Palmer v. Farmers Insurance, 50 St.Rptr. 1210, 1219
(1993). Blount has not made this required showing.
He contends that the letters identify potential witnesses
that he may not be aware of, or in the alternative, are
letters to witnesses already identified by respondent, and
are therefore relevant. The letters at issue here were sent
to witnesses whose identities have already been disclosed by
respondent. No new witnesses are identified in the letters.
Blount can depose the witnesses identified by respondent. So
far he has apparently not done so. Absent a deposition and
evidence that the deposition failed to disclose needed
information, Blount's request for the letters must be
other group of documents consist of letters from the
insurance adjuster to "potential witnesses." Blount
again claims that the "potential witnesses" might
be witnesses yet to be identified that he therefore needs the
letters to prepare his case. He also argues that if the
letters are to Karen Carlson and Dave Rosteck, who are
employees of his former employer, then they are relevant to
prepared by a party's agent, if prepared in anticipation
of litigation, are protected under the work-product rule.
Kuiper at 463. Thus it must be determined whether,
in the light of the nature of the documents and factual
situation in this case, the documents can fairly be said to
have been prepared because of the prospect of litigation.
Clark v. Norris, 226 Mont. 43, 50, 734 P.2d 182
(1987). In reviewing the letters, it is apparent that they
were written in anticipation of litigation. Letters 93 and 95
contain statements regarding the defense of the claim, and
were clearly written in anticipation of litigation. Letters
90 and 91 do not specifically refer to the litigation.
However, the documents were prepared at a point in time after
respondent had brought an attorney into the case. In light of
the documents and the factual situation of this case, they
appear to have been prepared in anticipation of litigation.
already discussed, the work-product protection is not waived
by the disclosure to third parties when the parties have a
common interest in the litigation. The adjuster's letters
were to employees of the employer. Those employees have been
identified by respondent as potential witnesses. No "new
witnesses" were identified in the documents, and, as
already discussed, the employer's interests are aligned
with the insurer. Blount has apparently not ...