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Burnside Lund v. St. Paul Fire & Marine Insurance Company

Court of Workers Compensation of Montana

March 1, 2002

KATHY A. BURNSIDE LUND Petitioner
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY Respondent/Insurer for THE INDUSTRIAL COMPANY Employer.

          Submitted: February 11, 2002

          DISCOVERY ORDER FOLLOWING IN CAMERA REVIEW

          MIKE MCCARTER JUDGE.

         Summary: Insurer resists discovery of 30 pages of documents from its claims file. Claimant moves to produce.

         Held: None of the documents are communications between attorney and client and are therefore not protected by the attorney-client privilege. Some, but not all of the documents do constitute either work product or, if not work product, contain mental impressions which are protected.

         Topics:

         Discovery: Claims File. An insurer's claim file is not protected by the work- product rule just because an attorney acting on claimant's behalf makes inquiries and requests concerning her benefits or corresponds with the employer concerning her discharge from employment.

         Discovery: Claims File. The work-product rule does not protect documents prepared in the ordinary course of claim adjustment even if prepared after there is a threat or commencement of litigation.

         Discovery: Claims File. Opinions or mental impressions prepared by an attorney, or at the direction or on behalf of an attorney, are entitled to greater protection than other work product.

         Discovery: Attorney Work Product. An insurer's claim file is not protected by the work-product rule just because an attorney acting on claimant's behalf makes inquiries and requests concerning her benefits or corresponds with the employer concerning her discharge from employment.

         Discovery: Attorney Work Product. The work-product rule does not protect documents prepared in the ordinary course of claim adjustment even if prepared after there is a threat or commencement of litigation.

         Discovery: Attorney Work Product. Opinions or mental impressions prepared by an attorney, or at the direction or on behalf of an attorney, are entitled to greater protection than other work product.

         ¶1 Kathy A. Burnside Lund (claimant) injured her head and neck on September 1, 1998, while working for The Industrial Company (Industrial) at the Stillwater Mine in Nye, Montana. The insurer, St. Paul Fire & Marine Insurance Company (St. Paul), accepted liability for the injury but has denied benefits for permanent impairment, wage loss, and further medical care. It also maintains it has paid for all reasonable medical care. Through her petition claimant seeks permanent partial disability benefits and medical treatment.

         ¶2 Following the filing of the petition in this matter, discovery disputes arose between counsel for the parties, leading to this Court's December 6, 2001 Order Regarding Discovery Motions. (2001 MTWCC 62.) One area of dispute involved the insurer's claims file. St. Paul produced much of its claims file, but withheld certain documents based upon its assertion of attorney work product and/or attorney-client privilege. Claimant sought production of the withheld documents. In my December 6thOrder, I directed St. Paul to describe each of the withheld documents as required by ARM 24.5.324. Once the documents were described, claimant was to then file a further motion to compel production identifying the specific documents she sought.

         ¶3 St. Paul's counsel, Mr. Joe C. Maynard, thereafter provided claimant's counsel, Mr. Timothy B. Strauch, with a "privilege log." Mr. Strauch believed the log was inadequate. To avoid protracted discussions on the issue, the Court's hearing examiner obtained the agreement of both counsel that Mr. Maynard would forward all of the withheld documents to the Court for in camera review.

         ¶4 Thirty pages of documents were thereafter received and were reviewed by the hearing examiner. After the initial review, the hearing examiner asked for further information from counsel regarding when counsel for the insurer and counsel for claimant were first involved in the claim, when demands were first made on the insurer, and how the documents fit within Montana precedent concerning work product. Additional argument was received from both counsel and considered by the hearing examiner. The matter was then deemed submitted for decision.

         ¶5 As an initial matter the hearing examiner reviewed the documents to determine if any of the documents are protected by the attorney-client privilege. In conducting that review, the hearing examiner was guided by Kuiper v. District Court of Eighth Judicial Dist. of State of Montana, 193 Mont. 452, 461, 632 P.2d 694, 699 (1981), in which the Montana Supreme Court said:

The subject matter and author of each exhibit is critical to determining whether attorney-client privilege is applicable. That privilege only applies statutorily in Montana to communications made by a client to his attorney and legal advice given in response thereto, during the course of professional employment. Section 26-1-803, MCA.

         The client in the context of the withheld documents was St. Paul. None of the withheld documents reflect communications between counsel for St. Paul and any of St. Paul's adjusters or other employees, officers, directors, or agents. Thus, the privilege is inapplicable.

         ¶6 The remaining issue is whether any of the documents are protected under the work- product doctrine. The doctrine was first articulated by the Supreme Court of the United States in Hickman v. Taylor, 329 U.S. 495 (1947). That case considered the discoverability of memoranda and statements prepared by an attorney in anticipation of litigation following a tugboat accident. Initially, the Supreme Court noted that the attorney-client privilege

does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories.

329 U.S. at 508. However, for reasons of policy and justice, the Court held that the materials were nevertheless protected by a "work product doctrine." The Court explained:

In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways - aptly though roughly termed by the Circuit Court of Appeals in this case [citation omitted] as the "Work product of the lawyer."

329 U.S. at 510-511.

         ¶7 As articulated by the Supreme Court, the work-product doctrine is not an absolute privilege. The Court held that "[w]here relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had." 329 U.S. at 511.

         ¶8 In Montana, the work-product doctrine is found in Rule 26(b)(3) of the Montana Rules of Civil ...


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