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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
.2d 694 (1981), which involved a strict liability claim against a tire manufacturer for personal injuries. One of the work-product issues in that case was whether documents prepared prior to the commencement of litigation were covered by the work-product rule. The Court answered the question in the affirmative:
When a claim file is opened, there is always some prospect of litigation and in an investigation must be conducted geared to the ultimate eventuality of litigation. Therefore, we feel that work product protection must be afforded from the time the claim file is opened. 193 Mont. at 465, 632 P.2d at 694.
Although the Court referred to the "claim file," the "claim" file in question in Kuiper was that of the tire manufacturer's in-house counsel. This is evident from the Court's description of the documents at issue, which consisted primarily of memoranda or communications involving an individual identified as in-house counsel. 193 Mont. at 460-462, 632 P.2d at 699-700.
The Kuiper decision is important in other respects. First, it affirmed that notwithstanding the fact that a document is deemed to be work product a plaintiff is entitled to production of the document if he shows he "has a substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Kuiper, supra, 193 Mont. at 465, 632 P.2d at 701. Second, it reiterated the rule that "those portions of the documents which relate to the mental impressions" of the author of the document are entitled to greater protection. Quoting In re Murphy, 560 F.2d 326 (8th cir. 1977), the Supreme Court stated:
"It is clear that opinion work product is entitled to substantially greater protection than ordinary work product. Therefore, unlike ordinary work product, opinion work product cannot be discovered upon a showing of substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship. See Fed.R.Civ.P. 26(b)(3). In our view, opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances. See Hickman v. Taylor, supra. Our unwillingness to recognize an absolute immunity for opinion work product stems from the concern that there may be rare situations, yet unencountered by this court, where weighty considerations of public policy and a proper administration of justice would militate against the nondiscovery of an attorney's mental impression. Absent such compelling showing, the attorney's opinion work product should remain immune from discovery." (Footnotes omitted). 560 F.2d at 337. 193 Mont. at 466, 632 P.2d at 701-702.
Cantrell v. Henderson, 221 Mont. 201, 718 P.2d 318 (1986), is important in the context of workers' compensation claims files because it expressly limits the "claims file" language of Kuiper to claims files maintained by attorneys. At issue in Cantrell was the protection afforded to a statement of the defendant truck driver which was taken by his employer's insurance company. The district court held that the statement was subject to the work-product rule and need not be produced. On appeal, the Montana Supreme Court reversed. It expressly limited the "claims file" language in Kuiper to an attorney's claim file:
The record shows that Mr. Henderson's statement was given to defendant's insurance company before the complaint was filed. There is no indication that an attorney had been hired or that the statement was made at the request of an attorney. We conclude that the holding in Kuiper does not extend to this situation. An insurance company cl
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