Keep Your Liability Claim Investigation Secret and Safe
Experienced liability claims managers know the perils of investigating a loss. If liability appears to be adverse, a thorough investigation might uncover and develop evidence that a claimant can later use to pursue a claim against you. On the other hand, a claim can’t be effectively evaluated or defended without the information and evidence that can only be obtained through a comprehensive investigation. The answer to that dilemma just might be your local neighborhood lawyer. Under the law of every state, the work product of a lawyer and the communications between a lawyer and a client are protected from disclosure as privileged and confidential. That means an adverse party cannot compel the lawyer, the client, or the lawyer’s retained consultants to disclose the results of the investigation. Best of all, it means the lawyer and the client can choose what is to be disclosed and what is to be kept confidential.
To illustrate, let’s look at a liability claim that arose from a fatal truck accident in Colorado a few years ago. In Aberkalns v. Blake et al., U.S.D.C., Colorado, 2009 WL 310709, 2009 U.S. Dist. LEXIS 35258, the trucking company involved in the accident immediately retained an attorney to represent it and oversee the investigation. At the request of law enforcement officers, the attorney consented to and observed the search, inspection, and testing of the company’s vehicle after the accident. The attorney also attended the police department’s accident reconstruction testing. The family of a man who had been killed in the accident later filed a wrongful death suit and listed the defense attorney as a witness. The plaintiff’s lawyer requested disclosure of the information obtained by the lawyer during the course of his post-accident representation of the trucking company. The company objected, citing attorney-client confidentiality. After the plaintiff’s lawyer refused to remove the defense lawyer from his witness list or withdraw the discovery requests, the defense filed a motion for a protective order. That motion asked the court to prohibit the plaintiff from obtaining any discovery from the defense lawyer and to prohibit the plaintiff from calling the defense lawyer as a witness. The plaintiff argued that the lawyer was “acting in the capacity of a risk manager or investigator, rather than as an attorney.” The magistrate judge disagreed with the plaintiff’s argument. After discussing the purpose of the attorney work-product doctrine, which is to protect the lawyer’s work and provide an opportunity for confidential analysis, the judge held that the defense lawyer could not be called as a witness and that the work he did for the trucking company was confidential and privileged. The judge went on to find that the plaintiff’s lawyer had blatantly attempted to cause undue burden and expense, and ordered the plaintiff to reimburse the defense for all expenses caused by the improper attempt to obtain privileged information. The court’s ruling reinforces the importance of proper legal representation, starting with the first report of an accident.
Keep in mind that information and documents that exist independently of a lawyer’s efforts and are relevant to a claim cannot be hidden merely by handing them to a lawyer. To qualify for privileged status, the information or document must have been created by the lawyer, or at the lawyer’s direction, for the purpose of legal representation. A lawyer, or a party, may not destroy evidence. That goes for their insurers, consultants, and office staff as well.
A complete, thorough and accurate investigation of any serious accident is an important first step to defending liability claims, but we must always be vigilant and avoid creating evidence that must later be disclosed and may then be used against us. The answer, in many cases, is just a barrister away.