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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
hasis added. The Court agreed:
We conclude that the holding in Cantrell controls the present issue, allowing discovery. The rules of civil procedure are premised on a policy of liberal and broad discovery. We therefore begin with the premise that these statements are generally discoverable. The statements at issue were taken in the regular course of the railroad's claims department business, just as in Cantrell the disputed statement was taken in the regular course of the insurer's business. In the present case the contemporaneous statements, taken within 24 hours of the accident, are unique and non-duplicable and should be available to both parties. 239 Mont. at 216, 779 P.2d at 891.
Palmer by Diacon v. Farmers Ins. Exchange, 261 Mont. 91, 861 P.2d 895 (1993), concerned when documents may be considered as prepared in anticipation of litigation. That case was a bad faith action arising out of the insurer's denial of a claim to recover uninsured motorist benefits. The insurer objected to producing materials dated after the insured's attorney threatened to sue for bad faith if the insurer denied the claim. The insurer argued that, "after that date, the unprivileged materials in the file were prepared in anticipation of litigation, thus were subject to the work-product doctrine." 261 Mont. at 114, 861 P.2d at 909. The Court agreed:
Materials prepared after Palmer's attorney threatened to sue for bad faith if Farmers denied Palmer's claim, however, were prepared with an eye toward eventual bad faith litigation. Therefore, any materials dated after October 8, 1985, are subject to the work-product doctrine. Materials in the files dated after that date, therefore, are discoverable only upon the required showing discussed below. 261 Mont. at 115, 861 P.2d at 910.
As in previous decisions, the Palmer Court noted that protection given to opinions within work product is "broader" than the opinions of only the attorney, protecting as well "the mental impressions of an attorney or other representative of the party concerning the litigation." 261 Mont. at 116, 861 P.2d at 911 (emphasis added). However, it went on to point out that some opinions and mental impressions may be discoverable even though they constitute work product and are subject to greater protection than non-opinion work product. The Court cited cases from several courts, including the Ninth Circuit Court of Appeals, which had held that despite the extra protection afforded opinion work product, mental impressions may nonetheless be discoverable "when the mental impression is directly at issue in the case and the need for the material is compelling." 261 Mont. at 117, 861 P.2d at 911. The case under consideration furnished an example:
In a bad faith case, such as the present case, where the issue is whether the insurer had a reasonable basis for denying the claim, the mental impressions and opinions of the insurer are directly at issue. The basis for denying such a claim lies only in the mental impressions of those representatives of the insurer who decided to deny the claim. Id.
While the Court refused to rule that such mental impressions were always discoverable in any bad faith case, it noted, "It is difficult to envision a circumstance in which the compelling need requirement would not be met when the mental impressions of a party are directly at issue in the case." Id. (italics in original, bold added). In contrast, the Court noted the work-product doctrine "protects materials containing the mental impressions of [the insurer's] attorneys." Id., emphasis added.
The Workers' Compensation Court has addressed the work-product rule in several cases. Those cases provide
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