RECURRENT DISCOVERY ISSUES IN INSURANCE BAD FAITH LITIGATION Part 1

Sean T. Carnathan, O’Connor, Carnathan and Mack, LLC (program chair)
Martin Pentz, Foley Hoag LLP
Daniel P. Tighe, Donnelly, Conroy & Gelhaar, LLP
Hon. Brian A. Davis, Massachusetts Superior Court

Allegations of insurer bad faith inevitably lead to recurrent discovery issues. Issues arise in every case concerning discovery of claims files, policies and procedures, reserves, other coverage determinations, internal correspondence, and the application and scope of attorney-client privilege and work product protections. What are the key puzzle pieces for each of these issues?

• The Claims File – Every bad faith litigant demands production of the claims file and typically it will be produced, but often with material redacted or withheld. What parts of a claims file is the insurer entitled to withhold or redact? What parts of a claims file are privileged? What is the proper scope of the required production?
• Policies and Procedures – Insurers routinely object to production of their policies and procedures. To what extent are they right and entitled to do so? When they are produced, is the insurer properly entitled to insist they be kept confidential?
• The Underwriting File – When is it relevant to a bad faith claim? What does the policyholder look to learn and why would an insurer resist producing it?
• Reserves – are they discoverable? To what extent are they relevant in any event?
• Internal Correspondence – Where does the litigation/work product line get drawn?
• Attorney-Client Privilege – To what extent are the insurer’s communications with counsel discoverable? Does it depend on whether the insurer asserts advice of counsel as a defense? If the insurer involves outside counsel early in the process, does that insulate other correspondence or parts of the claims file from discovery?
• Third-Party Claims – How do the issues change when a third party brings the claim, rather than the policy holder? What if the insured and insurer disagree about coverage, whether liability is reasonably clear, the value of the claim, and/or whether to settle or for how much?

The audio of this program was recorded on Thursday, October 3, 2019 at the Social Law Library in Boston, MA. Additional audio programs are available for purchase at the Library website located at https://www.socialaw.com/education/pr....