During the discovery phase of litigation, it is inevitable that discovery disputes arise between the plaintiff and defendants in Georgia personal injury, premises liability and malpractice litigation. One area of dispute that comes up often is when the plaintiff seeks the file that the insurance adjuster has compiled on the case. While the insurance companies try to avoid turning the file over, it is often discoverable unless the defendants can show a compelling reason to the court that it not be discoverable.
WORK PRODUCT IS NOT A BLANKET PROTECTION
The Defendants often claim that the adjuster’s investigative file is protected from disclosure by the so called “work product” privilege under O.C.G.A. §9-11-26(B)(3). This code section of the Georgia Civil Code deals with trial preparation materials and states in relevant part “a party may obtain discovery of documents … otherwise discoverable … and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative … only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
Absent the showing of a need to protect the witness from annoyance, embarrassment, or oppression, a trial court abuses its discretion in restricting the broad use of discovery. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E. 2d 862 (1975). Every witness can claim that taking the time to come to a deposition is annoying and embarrassing. However, the level of annoyance, embarrassment, and oppression must be substantial in order to need the court’s protection. Absent this showing by the defendant/insurance company, the file should be produced at deposition of the insurance adjuster.
In order to find out what type of pre-lawsuit investigation was done by the insurance company, an employee of the insurance company must be deposed and questioned under oath, as they are the only ones who possess the information sought by the Plaintiff. Thus, the Plaintiff meets his or her burden of showing affirmatively that there is a substantial need for such evidence in the preparation of plaintiff’s case and that it would cause an undue hardship to develop that evidence by means other than extraction from the files of the opposing party. Lowe’s of Ga., Inc. v. Webb, 180 Ga. App. 755, 350 S.E. 2d 292 (1986).
INSURANCE COMPANY INVESTIGATIVE FILES ARE NOT PER SE WORK PRODUCT
In order to escape discovery of it’s files, an insurance company must show that the documents in it’s file were prepared in anticipation of litigation or for trial by or for a party or by or for that party’s representative, and that the materials contains the mental impressions, conclusions, opinions, or legal theories of the person preparing them. If the items do not satisfy both requirements, they do not constitute work product, and may be freely discovered. Tobacco Rd., Inc. v. Callahan, 174 Ga. App. 539, 330 S.E. 2d 768 (1985).
The party wishing to claim protection of the work-product privilege has the burden of showing the document or other item was prepared in anticipation of litigation. GMC v. Conkle, 226 Ga. App. 34, 486 S.E. 2d 180 (1997). Work product immunity is not extended to statements obtained by insurance company claim agents or investigators, even though obtained under the supervision of defendant’s counsel, where such statements are routinely obtained as a standard practice of investigating accidents in which it or its servants and agents may be involved while performing its functions. Atlantic Coast Line R.R. v. Gause, 116 Ga. App. 216, 156 S.E. 2d 476 (1967). Absent such a showing, the insurance company must be compelled to present for a deposition, produce the requested investigative file at the deposition and be fully questioned by plaintiff’s counsel on the produced information.
Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.