Gross v. Scottsdale Insurance Company

Background

The parties asked the court to resolve a discovery dispute about the attorney work-product doctrine. The dispute concerned whether Terry Gross could question Mr. Breen about his investigation and the work leading up to a report. The report had already been disclosed. In an earlier order, the court had concluded that the report was not protected by attorney-client privilege because that protection had been waived.

Scottsdale Insurance Company did not claim work-product protection for documents. Instead, it argued that the protection covered Breen’s testimony about his “work and impressions” before he prepared the report. Gross argued that Scottsdale had not shown that Breen’s investigation was conducted because of the prospect of litigation rather than as part of the routine business of an insurance company.

Court’s analysis

The work-product doctrine generally protects materials prepared by or for a party or its representative because of anticipated litigation. The party claiming the protection has the burden of showing that it applies. The protection is not absolute and may be waived by disclosure to an adversary or in circumstances that substantially increase the chance that an adversary will obtain the material. Non-opinion work product may also be discoverable when the protection has been waived.

The court found it unclear what Scottsdale sought to protect because the Breen report itself was not protected. The court rejected Gross’s argument that a bad-faith insurance claim alone established an implied waiver of protection for Breen’s mental impressions. Gross had not shown that those opinions were directly at issue or that there was a compelling need for undisclosed opinion work product.

The court found Gross’s arguments persuasive as to non-opinion work product concerning matters already disclosed. Breen had already testified, without an objection from Scottsdale’s counsel, about at least some aspects of how he conducted the investigation and prepared the report. The court therefore concluded that any remaining protection had been waived for matters previously disclosed in the report and in that testimony. Gross had not established a basis to compel disclosure of Breen’s undisclosed mental impressions, conclusions, opinions, or legal theories.

Ruling

The court concluded that Gross may question Breen in a further deposition about: (1) the contents of the Breen report; and (2) factual information about the investigation Breen conducted. Because fact discovery had otherwise closed, Gross may not seek any additional discovery from Breen. The order did not authorize questioning about undisclosed opinion work product.