Court Rejects Privilege for “Reserve Amount” Set by In-House Claims Counsel Reply

If an insurance company may have to pay a claim, it typically sets aside a sum of money—the reserve—to fund that claim if and when payment becomes necessary. And if the company’s in-house claims counsel decides the reserve amount, the question arises whether the attorney–client privilege or work-product doctrine protects that decision from discovery.

The Arizona federal court, applying federal law, rejected a surety company’s privilege and work-product arguments, and ordered it to disclose its reserve amount to its adversary. The court made this ruling even though the company’s Senior Claims Counsel “solely” set the amount “in his capacity as legal counsel.” Western Surety Co. v. United States, 2018 WL 6788665 (D. Ariz. Dec. 26, 2018). You may read the decision here. More…

Mamma Mia! Don’t Bring Your Parents to a Lawyer Meeting Reply

A young adult, injured and likely nervous, takes her parents to an initial meeting with her personal-injury lawyer. Does the privilege protect this discussion from discovery? In a case of first impression, the Colorado Supreme Court rejected the privilege because the parents’ presence breached the confidentiality element of the attorney–client privilege. Fox v. Alfini, 2018 WL 6441601 (Colo. Dec. 3, 2018). You may read the decision, including the concurring and dissenting opinions, here.

How Did This Happen?

Kayla Fox, in her early 30s, suffered a stroke after receiving treatment from chiropractor William Alfini. Wondering if she had a professional-negligence claim against Alfini, Fox met with a lawyer. Fox’s parents accompanied her and participated in the lawyer meeting. Remarkably, the lawyer recorded the meeting.

Learning of the meeting, the recording, and the parents’ attendance, Alfini’s lawyers moved to compel the recording’s production. Fox, of course, claimed that the attorney–client privilege protected the recording from discovery, but Alfini argued that the parents’ presence eliminated the confidentiality element and, thus, the privilege.

And this dispute set up a Supreme Court clash. More…

Privileges in 2018–Year in Review

Another interesting year in the law of evidentiary privileges, including the apparent death and resurrection of the attorney-client privilege, has concluded. The Trump Administration continued to foster debate over privilege protections, Justice Kavanaugh’s privilege opinions, while perhaps not the primary focus of his Senate confirmation hearings, came to the forefront, and courts issued more privilege rulings in post-event investigations by corporate counsel.

So, for the one or two of you who have not studied each PoP post in 2018, here is my year-in-review. More…