Bad Faith Litigation: Insurer's Discovery of Plaintiff's Privileged Information
Strategies for Discovering Policyholder Communications With Legal Counsel, Counsel's Work Product

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Insurance
- event Date
Tuesday, November 1, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss strategies for discovering policyholders' communications with their legal counsel, including counsel's work product. The program will review which states have weakened or destroyed insurers' testimonial and work product privileges, the severe consequences of treating coverage counsel like a claims adjuster, and why courts deconstruct privilege. The panel will offer guidance on leveraging the same principles to access the same privileged information from the insured.
Faculty

Ms. Moss is office managing partner of the Atlanta office. She concentrates her practice in civil litigation, and she has extensive experience with matters pertaining to property, casualty, and trucking issues. Ms. Moss also regularly litigates civil and commercial matters pertaining to transportation and logistics, as well as mass and complex torts and class actions. She has also litigated complex cases involving environmental and toxic exposures, including asbestos, diacetyl, mold, and chemical exposures. Ms. Moss has participated in all phases of the defense of these matters, from initial discovery through dispositive motions, expert discovery, settlement negotiations, and trial practice. She also advises companies on risk management strategies.

Mr. Currie has been practicing law in the State of Mississippi since graduating from the University of Mississippi School of Law in 1976. In addition to eight years of teaching as an adjunct professor at the Mississippi College School of Law, his practice has run the gamut of insurance defense matters. Mr. Currie has served on the faculties of the International Association of Defense and Corporate Counsel Trial Academy, The National Institute for Trial Advocacy, and Trial Academies of the Mississippi Defense Lawyers Association.

Mr. Snell concentrates his practice on insurance coverage and bad faith, commercial litigation, personal injury defense and retail law.
Description
With increasing frequency, courts in bad faith litigation are refusing to apply the attorney-client privilege and work product protection to the communications and opinions of the insurer's coverage counsel on grounds that coverage counsel is investigating, evaluating, or assisting the claims adjusting process. If the insurer relies on the coverage opinion to deny a claim, then courts may rule that those opinions and papers have been issued.
These same principles and logic may offer insurers the same opportunities to obtain policyholders' privileged information regarding the same topics of investigation and evaluation of underlying claims and defenses.
Listen as this innovative and experienced panel of esteemed insurer counsel reviews the state of the law across the nation and offers a potential roadmap for getting the same kind of privileged information from policyholders.
Outline
- State approaches to the "no privilege" rule
- Asserting a "reverse" bad faith counterclaims
- Insurer discovery in first-party property bad faith
- Arguing waiver of policyholder privilege
Benefits
The panel will review these and other pivotal issues:
- Are pre-suit communications between insurer and coverage counsel, the claim file, and coverage counsel's file discoverable?
- Does involving coverage counsel automatically waive attorney-client privilege or work product protection?
- What strategies support access to plaintiffs' privileged information?
Related Courses

Insurance Bad Faith Litigation: Strategies and Practical Tools to Successfully Resist Entry of Protective Orders
Friday, April 25, 2025
1:00 p.m. ET./10:00 a.m. PT

Uninsured and Underinsured Motorist Claims: Evaluating Triggers, Stacking, Subrogation, Substitution of Benefits
Tuesday, April 22, 2025
1:00 p.m. ET./10:00 a.m. PT

Managed Repair Programs in Insurance: Navigating Policyholder Disputes About Scope of Work and Quality of Repairs
Tuesday, April 15, 2025
1:00 p.m. ET./10:00 a.m. PT
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