• Recent Developments in the Use of the Attorney-Client Privilege and Work Product Immunity to Shield Investigative Materials from Discovery in New York
  • August 27, 2014 | Author: Lorraine M. Armenti
  • Law Firm: Coughlin Duffy LLP - Morristown Office
  • An appellate-level state court in New York recently examined the applicability of the attorney-client privilege and work product immunity in the context of an insurer’s pre-denial-of-coverage retention of outside counsel to assist in evaluating the existence or non-existence of insurance coverage for a claim. See Nat’l Union Fire Ins. Co. of Pitts., Pa. v. TransCanada Energy USA, Inc., 2014 NY Slip Op 05606 (1st Dep’t App. Div.). The First Department held that “[d]ocuments prepared in the ordinary course of an insurer’s investigation of whether to pay or deny a claim are not privileged, and do not become so ‘merely because [the] investigation was conducted by an attorney.’” Id. ¶ 2 (citation omitted). The holding has given rise to questions about whether a bright-line rule now exists in the First Department barring application of work product immunity to documents prepared by retained counsel prior to an insurer’s denial of coverage. As discussed below, we do not believe that the holding, when read in context, departs from existing case law concerning investigative tasks performed by counsel. We examine the case and provide our opinion and recommendations below.