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Blount v. Conagra, Inc.

Court of Workers Compensation of Montana

March 16, 1994

CONAGRA, INC. Respondent/Insurer for NORTHWEST FABRICS Employer.



         Petitioner, 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.

         1. Motion To Compel Production

         Blount 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 third parties.
90, 91, 93 & 95: Letters of the insurance adjuster to "potential witnesses."

         It is 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."

         The 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.

         The 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.

         Correspondence 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).[1] 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 protection.

         Blount 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 denied.

         The 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 his case.

         Documents 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.

         As 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 ...

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