An interesting privilege issue arose in the State of Washington—whether a plaintiff–insured may obtain her uninsured motorist carrier’s (UIM) post-litigation file in a bad-faith case.
Distinguishing between a general insurer’s claims file—which is discoverable—and a UIM file, the Washington Court of Appeals ruled that the attorney–client privilege and work-product doctrine protect a UIM carrier’s post-litigation file. Richardson v. Gov’t Employees Ins. Co., 2017 WL 4367701 (Wash. Ct. App. Oct. 3, 2017). You may read the decision here.
Access to Attorney’s Post-Litigation File?
GEICO provided Christine Richardson with personal injury protection (PIP) coverage and UIM coverage. After suffering injuries in a car accident, Richardson received a coverage-limits payment from the at-fault driver and money from GEICO’s PIP coverage, but that was not enough. So, she filed a UIM claim and later a bad-faith lawsuit after GEICO denied UIM coverage. More…
May you disclose a privileged document to a government-enforcement agency and, later, successfully claim that the privilege precludes disclosure to an adversary in a civil proceeding? Generally, there is no common-law selective-waiver doctrine, but the SDNY, in In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 23, 2017), found no privilege waiver when Volkswagen’s lawyers disclosed privileged information to the Justice Department under a Non-Disclosure Agreement. You may read the opinion here.
Internal Investigation into Emissions Scandal
Volkswagen’s 2015 emissions scandal—where it inserted software to circumvent U.S. emissions tests—is well known. VW retained Jones Day, which conducted an extensive factual investigation as part of its representation. Jones Day analyzed millions of documents and interviewed hundreds of VW employees.
DOJ Deal More…
In a significant ruling that may exacerbate the continuing fallout from Baylor University’s sexual-assault scandal—and provide lessons for those conducting internal investigations—the USDC WDTX rejected Baylor’s “unsupported and unconvincing” privilege argument and ordered it to produce “all materials, communications, and information” provided to its investigating law firm.
The court held that Baylor’s intentional release of the law firm’s factual findings and recommendations necessarily disclosed attorney–client communications and constituted privilege waiver. Doe v. Baylor Univ., No. 16–CV–173–RP (W.D. Tex. Aug. 11, 2017). You may read the opinion here.
In an earlier post titled Baylor Univ. in Major Battle over Law Firm’s Investigation Documents, I set the stage for the Title IX plaintiffs’ motion to compel Baylor to produce documents provided to Pepper Hamilton, which it retained to conduct an “independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues.” More…