Communications and information exchanged between adjusters and insurer in-house counsel present unique challenges for application of the work-product protection, and the law is not uniform in this area.

Let’s explore the factors considered by courts when determining whether such communications and information are protected from disclosure to the insured and/or third-party claimant, and the typical disputes that arise in both coverage and bad-faith litigation.

Work-product protection applies to protect disclosure of an attorney’s mental impressions, and prevent discovery of materials prepared in anticipation of litigation or trial.

Most courts will require disclosure if the opposing party shows a substantial need for the material and an inability to obtain the substantial equivalent of the material by other means. Attorney involvement is generally not required.

Unlike attorney-client privilege, courts generally do not consider work-product protection “substantive” law. Accordingly, federal courts exercising diversity jurisdiction will apply federal law to determine whether information is protected work product, which can lead to disparities in treatment of information between federal and state courts in the same location.