KATHY A. BURNSIDE LUND Petitioner
ST. PAUL FIRE & MARINE INSURANCE COMPANY Respondent/Insurer for THE INDUSTRIAL COMPANY Employer.
Submitted: February 11, 2002
DISCOVERY ORDER FOLLOWING IN CAMERA REVIEW
Insurer resists discovery of 30 pages of documents from its
claims file. Claimant moves to produce.
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.
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.
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
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
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.
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.
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.
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.
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
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.
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
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.
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.
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
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.
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.
In Montana, the work-product doctrine is found in Rule
26(b)(3) of the Montana Rules of Civil ...