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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
aim file is not the same as an attorney's claim file, for purposes of the work product rule. We hold that Mr. Henderson's statement to defendant's insurer was not made "in anticipation of litigation" under Rule 26(b)(3). 221 Mont. 208, 718 P.2d 322 (emphasis added).
Clark v. Norris, 226 Mont. 43, 734 P.2d 182 (1987), provides further elucidation as to what is and is not protected under the work-product rule. That case involved an action for medical malpractice. Plaintiff sought discovery of "the report of the liability claim [Dr.] Norris provided to his insurance carrier, and the incident report prepared by St. Peter's Hospital for its attorneys." 226 Mont. at 49, 734 P.2d at 186. The defendant doctor argued that his report was privileged because it was filed "after Clark had filed her claim with the medical/legal panel." 226 Mont. at 49, 734 P.2d at 186. The Supreme Court held that, under Rule 26(b)(3), "it must be determined whether, in the light of the nature of the document and factual situation in a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Id., 226 Mont. at 50, 734 P.2d at 186 (emphasis added). Because proceedings before the medical/legal panel "are a condition precedent to and an integral part of the litigation process," the Supreme Court found the doctor's report "was in anticipation of litigation and entitled to the qualified protection from discovery pursuant to Rule 26(b)(3), M.R.Civ.P." Id.
However, it declined to extend the same protection to the hospital's report, distinguishing between documents prepared in anticipation of litigation, such as the doctor's, and documents routinely prepared or required irrespective of litigation.
While there are certain communications between a hospital and its attorneys which are protected, the attorney-client relationship does not automatically give rise to immunization of every piece of paper a hospital files with its attorney. A privilege cannot be created in a subject matter merely by transmitting it to an attorney. When a person employed by a corporation is instructed to make a report, the privilege of that report is to be determined by the employer's purpose in requiring the report. If the employer directs the taking of a report for confidential transmittal to its attorney, the communication may be privileged. 226 Mont. at 50-51, 734 P.2d at 187.
On the record before it, the Clark Court was not persuaded "of the requisite confidential nature of the [hospital] reports necessary to warrant their immunity from discovery afforded an attorney-client relationship." Id. at 51. The hospital administrator had testified that hospital policy required that an incident report be prepared and that he kept such reports on file indefinitely and routinely forwarded them to hospital counsel "regardless of whether litigation on that particular incident ever materializes." Id.
In State of Montana, ex rel., Burlington Northern Railroad Company v. District Court of the Eighth Judicial District, 239 Mont. 207, 779 P.2d 885 (1989), the Supreme Court reaffirmed the distinction between documents truly prepared in anticipation of litigation and those prepared as a regular business practice. At issue were witness statements taken by a senior claims examiner of the railroad just hours after an accident. The defendant railroad contended the witness statements were privileged work product "taken by an agent of defendant and . . . taken in anticipation of litigation." Id. at 215. Plaintiff responded that the "statements were simply statements taken in the regular course of business and are discoverable without any showing of need." Id. at 215-16, emp
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