 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
DISCOVERY ORDER FOLLOWING IN CAMERA REVIEW
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 6th Order, 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.
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 decision.
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.
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
Page 1 2 3 4 5 6 7 8 9 10 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|