1. © The McCoy Law Firm 2012 James McCoy The McCoy Law Firm 12400 Coit Rd., Ste. 560 Dallas, Texas 75251 (214) 292-2603 jim@mccoylawpc.com

2.  Competing Goals in Investigation ◦ Gather information while fresh ◦ Assess potential risks ◦ Identify coverage issues © The McCoy Law Firm 2012

3.  Work Product Privilege  Attorney Client Privilege  Expert Privilege © The McCoy Law Firm 2012

4.  Formerly known as the Attorney Work Product Privilege  The Cornerstone in Protecting a File © The McCoy Law Firm 2012

5.  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

6.  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

7.  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

8.  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

9. ◦ 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

10.  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

11.  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

12.  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

13.  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

14.  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

15.  Depends on speaker’s intent  Generally, confidential if not intended to be disclosed to third persons © The McCoy Law Firm 2012

16.  Survives termination of attorney client relationship  Survives conclusion of matter that caused representation © The McCoy Law Firm 2012

17. ◦ 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

18.  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

19.  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

20.  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

21.  Not Privileged  Tape good statements -- Summarize bad statements  Notes have better likelihood of remaining privileged © The McCoy Law Firm 2012

22.  Be clear in assignment  Communicate clearly as to exactly what you want and what you don’t want © The McCoy Law Firm 2012