The attorney-client privilege is constantly under attack during discovery, but a recent decision in Pennsylvania is favorable for protecting materials prepared by an in-house attorney who was also acting as a claims adjuster.

In Walter v. Travelers Personal Insurance, plaintiff was injured when he was run over by a tow truck. He filed a claim with Travelers, his insurer, but no benefits had been paid approximately five years later. Walker then instituted a bad faith claim against Travelers. During the litigation, plaintiff requested documents including emails, letters and an uninsured motorist worksheet prepared by Travelers’ in-house attorney. Travelers refused to produce these materials, citing to attorney-client privilege.

Judge Martin Carlson of the Middle District of Pennsylvania performed an in-camera review of the documents and determined that the documents were properly withheld as privileged. Plaintiff’s counsel argued that the attorney was acting in a dual-role as attorney and claims adjuster. However, Judge Carlson ruled that all of the documents were created while counsel was serving the client “in an attorney-client capacity, and not in some other function… such as a claims adjuster.” Thus, the documents were not discoverable to the plaintiff.

Thanks to Remy Cahn for her contribution to this post.  If you would like more information, please write to Mike Bono.