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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
er, even after it becomes likely that litigation will ensue on a workers' compensation claim, not every entry into a claim file is work product. Claimants are entitled to discovery records of ongoing adjustment decisions. Because insurance files continue to contain routine entries after litigation seems inevitable, the determination of work product involves scrutiny of each document to determine whether the document contains entries that are in fact prepared in contemplation of litigation.
St. Paul provided 30 pages of documents which it asserts are privileged. Each page is marked with a sticker bearing a five digit number. The hearing examiner has reviewed those documents in camera. Many of the pages are print-outs of a computerized diary system. Others are handwritten notes on various notepads or transmittal forms. A few are copies of statutes. Several are "claim progress" notes which constitute separate, brief records of phone calls or transactions. These notes cover some of the same time periods as the diary file notes.
The grid below identifies each document by its page number, contains a brief description of each page, and sets out the Court's order regarding production. The discoverability of the documents was judged on the basis of their content in the context of the letters produced by respondent and in light of Montana law reviewed above. Based on the hearing examiner's review and recommendations, the Court is ordering that St. Paul produce most of the documents. The documents that are ordered produced were not, in the judgment of the hearing examiner, prepared in actual contemplation of litigation and do not reflect the mental impressions of the claims adjuster or St. Paul's attorneys regarding claims or defenses.
With regard to whether the adjuster was acting in contemplation of litigation at any particular point, it is noted that a document dated December 31, 1998, contains what appears to be a computer-generated prompt which asks, "Litigation involved y/n." The entry is "n," indicating no. (Page 00335.) An entry dated January 15, 1999, however, contains a reference reasonably construed as indicating the adjuster believed a threat of litigation existed. ( Page 00250.) As will be clear from the below rulings, the hearing examiner determined that some documents after that date do appear to have been prepared in anticipation of litigation. Some contain opinions or mental impressions relating to possible litigation. Those entries are deemed protected by the work-product privilege.
Some of the documents ordered produced are records of communications among the adjuster, claimant's counsel, and Colin Reid (Reid), an attorney for the employer. Respondent has not asserted an attorney-client privilege regarding communications with Reid, nor is that privilege applicable. In the background of some of those communications, and other notes in the file which I am ordering the insurer to produce, is the possibility of a claim by claimant against the employer for wrongful termination. Because wrongful termination of employment is not a claim threatened against the insurer, the work-product doctrine is not applicable to St. Paul.
Page # Description of Document Order
00422 Diary File Notes dated 11/09/98. Produce unredacted.
00405 Handwritten note from Carol Crews dated 11/4. Produce unredacted.
00397 File or system notes dated 11/16/98. Redact material concerning unrelated death claim (upper part of page). Produce unredacted the note labeled Burnside (lower portion of page.)
00376 "Metracomps Activ Special Handling Instructions" dated 11/20/98. Produce unredacted.
00363 Diary File
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