© The McCoy Law Firm 2012 James McCoy The McCoy Law Firm 12400 Coit Rd., Ste. 560 Dallas, Texas 75251 (214) 292-2603 [email protected]

© The McCoy Law Firm 2012

James McCoyThe McCoy Law Firm

12400 Coit Rd., Ste. 560Dallas, Texas 75251

(214) [email protected]

Competing Goals in Investigation◦ Gather information while fresh◦ Assess potential risks◦ Identify coverage issues


Work Product Privilege Attorney Client Privilege Expert Privilege


Formerly known as the Attorney Work Product Privilege

The Cornerstone in Protecting a File


Work product comprises:◦ Material prepared or mental impressions

developed in anticipation of litigation or trial by or for a party or a party’s representatives, including, a party’s attorneys, sureties, indemnitors, insurers, employees or agents; or

◦ A communication made in anticipation of litigation or for trial between a party and a party’s representatives, including, a party’s attorneys, sureties, indemnitors, insurers, etc.


Most critical component If you don’t have this, you don’t have

anything The rules of civil procedure do not define

“anticipation of litigation”


National Tank v. Brotherton (Tex. 1993)◦ Objective component

a reasonable person would have concluded from the totality of circumstances surrounding the investigation that there was a substantial chance litigation would ensure

◦ Subjective component the party resisting discovery believed in good faith

that there was a substantial chance litigation would ensue and conducted the investigation for purposes of preparing for the litigation


Employer knows this employee is suit happy Employer has no reason to believe

employee would ever sue until he is served with suit papers

Is this the type of injury that would likely throw off a suit?

Routine accident reports will never be privileged


◦ Identity of witnesses, witness statements and contentions of the parties

◦ Trial exhibits ordered disclosed◦ Identification of potential parties or persons with

knowledge of relevant facts◦ Any photograph that a party intends to offer into

evidence◦ Any product falling within exception to Evidence

Rule 503(d)◦ Witness statements


Core attorney work product is absolutely privileged◦ By the attorney or his representative

Written memos, case evaluation -- containing mental impressions, opinions, conclusions or legal theories

All other material can be produced upon showing of substantial need and undue hardship


Overlaps work product privilege Who is Entitled?

◦ Client and/or representative and Lawyer and/or representative

◦ Lawyer and his representative◦ Client or lawyer and another party in pending

action regarding matter of common interest◦ Communications between representatives of

client ◦ Lawyers and their representatives representing

same client


Person, corporation or other entity who is rendered professional legal services by a lawyer or who consults with a lawyer with a view toward obtaining professional legal services


A person having authority to obtain professional legal services or to act on the legal advice

Any person who for purpose of effectuating legal representation for client makes or receives confidential communication while acting in scope of employment for client


Any person who the client believes is authorized to practice law in any state or nation

Lawyer’s representatives are those employed by lawyer to assist lawyer in rendition of professional legal services


Depends on speaker’s intent Generally, confidential if not intended to be

disclosed to third persons


Survives termination of attorney client relationship

Survives conclusion of matter that caused representation


◦ Crime/fraud exception◦ Communications relevant to parties who claim

part of estate◦ Breach of attorney client relationship◦ Attested document for which attorney is attesting

witness◦ No privilege for actions between multiple clients◦ Communications concerning fee arrangement


Hire after litigation anticipated, if possible Consulting expert only discoverable if his

opinions shown to testifying expert Best to have defense counsel do the hiring

◦ Plaintiff’s attorney can potentially reach this witness if carrier does the hiring

Unclear if expert’s materials would constitute “core” work product


Voluntary disclosure waives privilege Consenting to disclosure of any significant

part of privilege waives privilege Don’t turn file over to anybody other than

the insured or the attorney


Written demand letter is best for establishing anticipation of litigation

If plaintiff has attorney, document your file that he threatened to sue◦ Representation by an attorney alone doesn’t

attach privilege Do a routine and “special” investigation Utilize defense counsel to conduct sensitive

investigations


Not Privileged Tape good statements -- Summarize bad

statements Notes have better likelihood of remaining

privileged


Be clear in assignment Communicate clearly as to exactly what you

want and what you don’t want


Documents

© The McCoy Law Firm 2012 James McCoy The McCoy Law Firm 12400 Coit Rd., Ste. 560 Dallas, Texas 75251 (214) 292-2603 [email protected]