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Mutchie v. Old Republic Insurance Co.

Court of Workers Compensation of Montana

January 20, 1995

ROBERT B. MUTCHIE Petitioner
v.
OLD REPUBLIC INSURANCE COMPANY Respondent

          ORDER COMPELLING DISCOVERY

          Mike McCarter JUDGE

         Summary: Petitioner sought production of employer's personnel file, personnel manual, and telephone records; adjuster's notes and memos; and surveillance information.

         Held: Personnel manual was produced and issues involving telephone records will be covered in deposition. With regard to personnel file, employer is concerned the claimant is making a fishing expedition to support a potential wrongful discharge lawsuit. Where claimant contends he seeks references to prior back problems, the file will be reviewed by the employer's attorney for identification of materials relating to back problems, then produced in its entirely for in camera review by the Court.

         Materials in the adjuster's file referencing attorney advice or specific mental impressions are protected under the attorney-client privilege or work-product rule. However, because this dispute concerns the treatment and handling of petitioner's claim, and a specific issue exists as to selection of a physician, much of the adjuster's file must be produced. Where the Montana Supreme Court has distinguished between claims files of attorneys and those of insurers, Cantrell v. Henderson, 221 Mont. 201 (1985), the work-product rule does not automatically apply to an insurer's file. Information prepared in the regular course of a claims adjuster's work is typically not protected.

         Pursuant to the Court's ability to control the sequence of discovery, information regarding surveillance of claimant need not be produced until after respondent has had the opportunity to depose claimant. See, Yager v. Montana Schools Group Insurance, 1994 MTWCC 24.

         Topics:

Discovery: Claims File. Materials in the adjuster's file referencing attorney advice or specific mental impressions are protected under the attorney client privilege or work product rule. However, because this dispute concerns the treatment and handling of petitioner's claim, and a specific issue exists as to selection of a physician, most of the adjuster's file must be produced. Where the Montana Supreme Court has distinguished between claims files of attorneys and those of insurers, Cantrell v. Henderson, 221 Mont. 201 (1985), the work-product rule does not automatically apply to an insurer's file. Information prepared in the regular course of a claims adjuster's work is typically not protected.
Discovery: In Camera Inspection. Personnel manual was produced and issues involving telephone records will be covered in deposition. With regard to personnel file, with the employer concerned the claimant is making a fishing expedition to support a potential wrongful discharge lawsuit, and claimant contending he seeks references to prior back problems, the file will be reviewed by the employer's attorney for identification of materials relating to back problems, then produced in its entirely for in camera review by the Court.
Discovery: Employment Records. Personnel manual was produced and issues involving telephone records will be covered in deposition. With regard to personnel file, with the employer concerned the claimant is making a fishing expedition to support a potential wrongful discharge lawsuit, and claimant contending he seeks references to prior back problems, the file will be reviewed by the employer's attorney for identification of materials relating to back problems, then produced in its entirely for in camera review by the Court.
Discovery: Privileges: Work Product. Materials in the adjuster's file referencing attorney advice or specific mental impressions are protected under the attorney client privilege or work product rule. However, because this dispute concerns the treatment and handling of petitioner's claim, and a specific issue exists as to selection of a physician, much of the adjuster's file must be produced. Where the Montana Supreme Court has distinguished between claims files of attorneys and those of insurers, Cantrell v. Henderson, 221 Mont. 201 (1985), the work-product rule does not automatically apply to an insurer's file. Information prepared in the regular course of a claims adjuster's work is typically not protected.
Discovery: Surveillance. Pursuant to the Court's ability to control the sequence of discovery, information regarding surveillance of claimant need not be produced until after respondent has had the opportunity to depose claimant. See, Yager v. Montana Schools Group Insurance, 1994 MTWCC 24.

         Petitioner in this matter seeks an order compelling discovery. His attorney, as well as respondent's attorney, provided the Court with certain discovery documents and letters outlining their respective positions. Because of the short time frames involved in this case, they also agreed to a conference call with the Court for the purpose of resolving their dispute. That call was held January 19, 1995. Participating were claimant's counsel, Mr. Stephen C. Pohl, and respondent's counsel, Mr. Joe C. Maynard. Additionally, Mr. Tom Hattersley, who represents the employer, participated in the discussion of the petitioner's request for employee files and employer telephone records.

         The Court ruled on each of the matters presented by the parties. This Order will briefly memorialize those rulings.

         Employer ...


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