(LexisNexis)
In a case in which insurance coverage was at issue, a federal court ordered production of certain documents generated by the insurance company's coverage counsel. The documents included the lawyer's research and analysis of coverage, whether or not any of it was communicated to the carrier, and whether or not any of it was generated after the coverage lawsuit was filed.
The case involved alleged damage to the interior of a house. Dorn Homes, Inc. was the builder/developer but it subcontracted the actual work to others. The carrier, United Specialty, declined coverage and the policyholder, Dorn, filed suit. To be sure, there were stipulations and protestations concerning work product and even attorney-client privilege between the parties, but the policyholder never yielded in its assertion that it was entitled to the discovery under the Federal Rules of Civil Procedure.
That teed up the issue for the federal judge's ruling granting Dorn's motion to compel from the carrier in United Spec. Ins. Co. v. Dorn Homes, Inc., 334 F.R.D. 542, 548 (D. Ariz. 2020) (boldface in the Court's order):
IT IS ORDERED that Defendant Dorn Homes, Inc.'s Motion to Compel Documents Withheld as Attorney Work Product (Doc. 123) is granted. Plaintiff United Specialty Insurance Company must produce, no later than January 31, 2019, all documents containing research and analysis on Desert Mountain [an Arizona State Court case relevant to the coverages claims at issue here concerning] preventative damages prepared by USIC's coverage counsel and that form the basis of USIC's advice of counsel defense, whether or not communicated by counsel to Plaintiff, and whether or not created post-lawsuit.
Discovery of "Insurance Counsel's Files" is the subject of § 12:8 in 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).
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