Pasteris v. Robillard
121 F.R.D. 18, 1988 U.S. Dist. LEXIS 9732, 1988 WL 75084 (1988)
Rule of Law:
Statements made to an insurer in the ordinary course of business for claims investigation, before litigation is reasonably anticipated, are generally not protected from discovery by the work-product doctrine or the attorney-client privilege.
Facts:
- On June 2, 1986, Marie Pasteris allegedly fell down a flight of stairs at Gary and Sharon Robillard's home.
- In July 1986, Marie Pasteris informed the Robillards’ insurance company of her alleged fall and made a demand for payment under their insurance policy.
- On August 4, 1986, Marie Pasteris and Gary Robillard each made statements to the Robillards' insurance company.
- On August 11, 1986, the insurance company sent a Medical Payments Receipt and Release for $1,000 to Marie Pasteris.
- Marie Pasteris first contacted her attorney on October 29, 1986, and counsel was officially retained on November 4, 1986.
- On November 13, 1986, plaintiffs' counsel sent a letter to the Robillards' insurance company to initiate a claim concerning Marie Pasteris’ fall.
Procedural Posture:
- On January 15, 1988, Marie Pasteris, plaintiff, served a Request for Production of Documents on Gary and Sharon Robillard, defendants, seeking copies of witness statements.
- On February 8, 1988, the Robillards filed their response, objecting to producing a transcribed statement made by Gary Robillard.
- On April 29, 1988, plaintiffs served a motion, pursuant to Federal Rule of Civil Procedure 37(a)(2), for an order compelling the defendants to produce all documents.
- On May 11, 1988, defendants filed their opposition to plaintiffs' Motion to Compel.
- On June 7, 1988, Marie Pasteris filed a memorandum supporting the motion to compel.
- On June 13, 1988, the defendants filed a memorandum in opposition and a motion to strike Marie Pasteris’ memorandum.
- A hearing on the matters was held on June 22, 1988, and these matters were taken under advisement by the United States Magistrate Judge.
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Issue:
Does a statement made by an insured to their insurance company, prior to the retention of counsel and the formal commencement of a lawsuit, qualify for protection under the work-product doctrine or the attorney-client privilege?
Opinions:
Majority - Joyce L. Alexander
No, a statement made by an insured to their insurance company, prior to the retention of counsel and the formal commencement of a lawsuit, does not qualify for protection under the work-product doctrine or the attorney-client privilege under these circumstances. The court found that Gary Robillard's August 4th statement to his insurer was not prepared 'in anticipation of litigation' as required by Federal Rule of Civil Procedure 26(b)(3). The statement was obtained months before plaintiffs secured counsel, over a year before defense counsel corresponded, and almost a year and a half before the lawsuit began. The court reasoned that merely notifying an insurance company of a demand for payment does not, by itself, make litigation 'likely, reasonably probable, or a contingency,' as most claims are resolved amicably. Instead, the statement was deemed a routine part of the insurance company's ordinary business of investigating claims. The court concluded that litigation could not have been reasonably anticipated until after plaintiffs' counsel sent a formal letter initiating a claim on November 13, 1986. Regarding the attorney-client privilege, the court held that it did not apply because the Robillards failed to demonstrate that the statement was made to an attorney or a subordinate of an attorney who was acting as a lawyer. The privilege only protects communications made to a member of the bar or their subordinate acting in a legal capacity. The defendants did not provide facts showing the insurance company employee who took the statement was a subordinate of an attorney or acting as an attorney. The court declined the request to broadly extend the attorney-client privilege to all statements made by an insured to their insurer, finding no legal basis for such a ruling in Massachusetts law.
Analysis:
This case clarifies the application of the work-product doctrine and attorney-client privilege in the context of insurance investigations. It establishes a high bar for demonstrating that a document was prepared 'in anticipation of litigation,' emphasizing that routine claims processing does not automatically trigger work-product protection. The ruling discourages blanket assertions of privilege by insurers for early investigative statements, potentially increasing their discoverability in litigation. Furthermore, it reinforces the strict requirements for invoking the attorney-client privilege, rejecting an expansion of the privilege to cover all communications between an insured and their insurer without specific evidence of attorney involvement.
