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© The McCoy Law Firm 2012 James McCoy The McCoy Law Firm 12400 Coit Rd., Ste. 560 Dallas, Texas 75251 (214) 292-2603 firstname.lastname@example.org
Competing Goals in Investigation ◦ Gather information while fresh ◦ Assess potential risks ◦ Identify coverage issues © The McCoy Law Firm 2012
Work Product Privilege Attorney Client Privilege Expert Privilege © The McCoy Law Firm 2012
Formerly known as the Attorney Work Product Privilege The Cornerstone in Protecting a File © The McCoy Law Firm 2012
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. © The McCoy Law Firm 2012
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” © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
◦ 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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
Depends on speaker’s intent Generally, confidential if not intended to be disclosed to third persons © The McCoy Law Firm 2012
Survives termination of attorney client relationship Survives conclusion of matter that caused representation © The McCoy Law Firm 2012
◦ 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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
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 © The McCoy Law Firm 2012
Not Privileged Tape good statements -- Summarize bad statements Notes have better likelihood of remaining privileged © The McCoy Law Firm 2012
Be clear in assignment Communicate clearly as to exactly what you want and what you don’t want © The McCoy Law Firm 2012
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