Ordinary Course of Business
Carriers investigate accidents in the ordinary course of their business. They take statements and photos as part of the ordinary course of their claims business. Can those statements and photos and other material of the insurer be obtained?
The Rules
The pertinent rules are Rule 4:1(b)(1) and (b)(3).
Rule 4:1(b)(1) sets forth the broad parameters of discovery. Those broad parameters are that the material not be privileged, is relevant and is reasonably calculated to lead to the discovery of admissible evidence. If those 3 criteria are met, then the information requested is probably discoverable.
Rule 4:1(b)(3) then provides a limitation. That rule is entitled, “Trial Preparation: Materials”. Virginia Code § 1-217 says that headlines of Code sections are mere “catch words” and do not constitute part of the act of the General Assembly. That Code section is limited to Code sections. There is nothing in the rules that says that the headlines are not intended to have meaning. This headline or header of “Trial Preparation: Materials” presumably means what it says. Only an attorney can try a case. Trial preparation may be engaged in by persons other than an attorney. However the fact that there is trial preparation involved means that the attorney must be involved.
As a result if you’re going to read Rules 4:1(b)(1) and (b)(3) together, it means that (b)(3) applies only to material wherein there is attorney involvement.
It’s well established that the work product doctrine and items prepared in anticipation of litigation may be prepared by people other than attorneys. However to come under the overall rubric of subsection (b)(3), there has to be an attorney involved.
Burden of Proof
If the insurer objects to providing that material based on some privilege, it has the burden of proving that. Privilege is an exception to the general rule to disclose. It is an obstacle to the investigation of the truth and should be strictly construed. Walton v. Mid Atlantic Spine Specialist, PC, 280 Va. 113, 122 (2010). To meet this burden of proof, there must be some evidence.
The mere assertion that the matter is confidential and privileged does not suffice. Robertson v. Commonwealth, 181 Va. 520, 540 (1943); Creasy v. Medical Associates of Southwest Virginia, Inc., 98 Va. Cir. 332 (Roanoke, 2018) (Failure to provide any evidence supporting a claim of privilege); Peck v. Riverside Hospital, Inc., 91 Va. Cir. 537 (Newport News, 2014) (No Code § 8.01-581.17 privilege without evidence); Boyd v. Florey, 2006 W.L. 8201181 (Chesterfield, 2006) (Defendant has made no showing that statements were in anticipation of or preparation for litigation); Fleming v. Mountain States Health Alliance (W.D. Va. 2012), 2012 U.S. Dist. LEXIS 72795 (Privileges not proved without evidence); Snovell v. Williamsburg Facility Operations, (York, 2015) 2015 Va. Cir. LEXIS 56, 2015 W.L. 2441684 (No privilege where there is no evidence)
Bright Line Rule
Many courts have adopted what might be called a “Bright Line Rule”: there must be attorney involvement before there can be any trial preparation that involves anticipation of litigation. Those so-called “bright line cases” are many in number.
A statement made by an employee to his employer in the ordinary course of business and before suit has been threatened, is not privileged even if given to the employer’s attorney. Virginia-Carolina Chem. Co., v. Knight, 106 Va. 674, 679 (1907); Robertson v. Commonwealth, 181 Va. 520, 540 (1943). Any statement made by a party or to a party’s agent other than an attorney acting in the role of counselor which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment an attorney’s legal expertise must be conclusively presumed to have been made in the ordinary course of business. Lopez v. Woolever, 62 Va. Cir. 198, 201 (Fairfax, 2003); McKinnon v. Doman, 72 Va. Cir. 547 (Norfolk, 2007) (Statement is not prepared in anticipation of litigation unless either the defendant has retained counsel or plaintiff’s counsel has notified the defendant of the attorney’s involvement).
Likewise claim statements, reports and other material collected in the ordinary course of business are not prepared for litigation. They are prepared as part of the business of the insurer. As a result they are not privileged. Sandberg v. Virginia Bank Shares, Inc., 979 F.2d 332, 355 (4th Cir., 1992). Overton v. Dise, 35 Va. Cir. 177 (1994) (statement taken the day after the accident is discoverable); Estabrook v. Conley, 42 Va. Circ. 512 (1997) (involvement of counsel is a prerequisite to the privilege); Monterrozo v. Sandridge, 98 Va. Cir. 372 (2019) (any statement given before counsel is retained or suit filed is not work product); Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006) (Privilege does not apply to a Hospital Incident Report).
In Popina v. Rice-Steward, 86 Va. Cir. 403, 404 (Cir.Ct. City of Va. Beach, 2013), the court ruled that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product. As pointed out in Popina, supra, seeking protection of statements taken by the insurance adjusters prior to retention of counsel would mean a failure to read 4:1(b)(1) and 4:1(b)(3) together. Also see Janice Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 470 (Albemarle County, 1996) citing State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D.Va., 1984) (ordering insurance company to produce documents which were prepared prior to receipt of representation letter from opposing party’s attorney). In Lyles v. Calloway, 2013 W.L. 1069997 (Gloucester, 2013), the defendant was ordered to provide any statement of the defendant or other potential witnesses taken prior to legal counsel being retained.
Involvement of Counsel
Insurers may argue that because these documents came into the hands of counsel that therefore they are protected by the attorney work product doctrine. However that is not so. Not every document generated by an attorney is protected by the work product doctrine. Likewise not every document delivered to counsel is protected. In other words, if the document was not prepared with an eye to litigation, then it is not so protected. Commonwealth v. Edwards, 235 Va. 499, 510 (1988). The document must be prepared because of the prospect of litigation. Sandberg, 979 F.2d at 356.
Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, 2009 U.S. Dist. LEXIS 33019, *5-14 (W.D. Va. Apr. 17, 2009) (all investigative and other materials before insurer “officially disclaimed coverage” 2 years post-incident); Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 256-259 (W.D. Va., 1999) (insurer internal claim file documents, correspondence and reinsurer information); Collins v. Mullins, 170 F.R.D. 132, 134-136 (W.D. Va., 1996) (internal investigation witness statements); Seay v. Chung, No. CL11000546-00 (Fauquier, Aug. 2013) (insurer statement of defendant); Lowe v. Norfolk So. Ry. Co., 81 Va. Cir. 221, 221-227 (Hopewell, 2010) (“in-house investigative documents” including superintendent’s internal memorandum to general manager, district claims agent’s diagram, and undated computer diagram); Dudley v. Cash, 82 Va. Cir. 1, 18-19 (Augusta, 2010) (insured computer printout of accident report, letter and handwritten notes to insurer, telefax coversheet to insurer, loss report, letter with state and local law enforcement authority reports and letter to state police, and insurer handwritten claim file notes); Burr v. P.C. Paving, 78 Va. Cir. 56, Order (Suffolk, Dec. 2, 2008) (Progressive statements of defendant and witness); Massenburg v. Hawkins, 70 Va. Cir. 13, 16 (Greensville, Jun. 27. 2005) (Allstate statements); Gochenour v. Sears, Roebuck & Co., VLW 003-8-149 (Loudoun, Jul 2003) (incident report); Wood v. Barnhill, 52 Va. Cir. 274, 275 (Charlottesville, 2000) (insurer statements); Thompson v. Winn Dixie Raleigh, Inc. 49 Va. Cir. 115, 116 (Chesterfield, 1999) (pre-litigation statements); Whetzel v. McKee, 44 Va. Cir. 315, 316-317 (Rockingham, 1998) (insurer statements 3+ months post-accident); Taylor v. McCallister, 40 Va. Cir. 327, 328 (Alleghany, 1996) (Virginia Farm Bureau statements of parties and third parties); Shelton v. Blair, 40 Va. Cir. 237 (Pittsylvania, 1996) (insurer adjuster notes); Clark v. Winn-Dixie Raleigh, Inc., 40 Va. Cir. 228, 228-230 (Henry, 1996) (insurer accident reports, internal memoranda, correspondence, handwritten notes, and typewritten notes); Ramsey v. Gordon, 39 Va. Cir. 409, 409-410 (Lynchburg, 1996 (insurer statements of parties and witnesses within 30 days post-accident); Kanchanayothin v. Stancell, 39 Va. Cir. 189, 189-190 (Loudoun, 1996) (Nationwide statement of defendant 28 days post-accident); Carroll v. Blackwell, 1996 Va. Cir. LEXIS 591, *5 (Richmond, 1996) (all pre-suit insurer factual documents); S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 243-244 (Albemarle, 1993) (insurer letter); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Amherst, 1992) (employee statements); and Brugh v. Norfolk & W. Ry, 4 Va. Cir. 477 (Botetourt 1979) (6 employee and other statements); Dudley v. Cash, 82 Va. Cir. at 19 (Augusta, 2010) Defendant “must either provide a basis for finding that his statements are work product, or he must produce them”. (emphasis added); Billups v. Hunter, V.L.W. 096-8-044 (Hampton, 1995) (Court required defendant to produce statements taken from defendant and witnesses two weeks after crash but not to produce statement taken two months later after defense counsel became involved; Moore v. Farm Fresh, V.L.W. 096-8-043 (Newport News, 1995) (Supermarket ordered to produce accident report three months after the accident and a statement taken four months after the accident); Pressey v. State Farm Mutual Automobile Insurance Co., V.L.W. 096-8-046 (Newport News, 1995) (Defendant ordered to produce two statements taken within ten days of auto crash but denied production of statements taken after defense counsel became involved).
Multi-Factor Analysis
Some courts have moved away from the bright line rule and instead have adopted a multi-factor analysis in terms of determining whether recorded statements or other claims investigation material is discoverable.
One of the more thorough analyses adopting that approach is found in Hicks v. Pruden, 93 Va. Cir. 409, where Judge Lannetti of Norfolk applied 8 factors. Other courts have added other factors: (1) the apparent severity of the plaintiff’s injuries; (2) whether it is immediately apparent that any negligence would likely lie solely with the company’s insured; (3) whether the plaintiff notified the defendant that the plaintiff would pursue a claim (or that the plaintiff lacked the resources to pay for his medical expenses); (4) whether defendant was notified that plaintiff had retained counsel; (5) whether the person who took the statement is charged with safety responsibilities, or whether the investigation was made pursuant to policy, statute, regulation or other non-litigation purpose; (6) whether a statute clearly implicates the insured with liability; (7) whether the insurer investigated the plaintiff’s claim in the manner he investigated all other claims with normal procedures; (8) whether the documents were produced before an insurer formally denied a claim; (9) timing of the statement in particular was an initial statement or a subsequent statement; (10) was the statement taken at the direction of counsel and (11) who initiated the call? If it was the defendant, then it is more likely simply for the purpose of reporting something, but if it was the adjuster, then it could be as part of an investigation in anticipation of litigation.
Substantial Need-Accident Investigation
Furthermore there may be a substantial need for the plaintiff to obtain these documents. Such things as witness statements that are taken shortly after the event are unique. In other words there is no substitute for these types of statements taken within a short time of the event. There are few things of greater value than statements taken of a witness when that witness’ memory is fresh. A finding of substantial need is well within the trial court’s discretion. Rakes v. Fulcher, 210 Va. 542, 546 (1970).
In Hite v. Mary Immaculate Hospital, Inc., 105 Va. Cir. 121 (Newport News, 2020), the court dealt with a hospital fall where the risk manager met with members of the plaintiff’s family and made handwritten notes. An outside attorney for the hospital had directed the risk manager to investigate the fall and report to the insurance carrier. The trial court found that the handwritten notes were prepared in anticipation of litigation but ruled that there had been a showing of substantial need for the documents and that the plaintiff was unable to obtain the substantial equivalent by other means.
In Larson v. McGuire, 42 Va. Cir. 40 (1997) the court noted that a statement of the defendant to the insurer taken shortly after the accident serves as a basis for understanding the defendant’s claim of contributory negligence and therefore is discoverable. In addition it’s important that parties be able to explore inconsistencies in testimony. Massenburg v. Hawkins, 70 Va. Cir. 13 (2005) (Good cause exists where statements are approximately contemporaneous with the accident and opposing counsel had no opportunity to question the witnesses until weeks or month later.)
In Galloway v. Sunbelt Rentals, Inc., 2015 Va. Cir. LEXIS 4121, 2015 W.L. 176615 (W.D.Va. 2015) the court found that sworn court-reported contemporaneous MVA eyewitness statements taken by defense counsel are “fact work product” but plaintiff had “substantial need” and no “substantial equivalent…without undue hardship”. Cf. New Prime, Inc. V. Gutshall, 196 F.R.D. 43, 46 (W.D.Va. 2000) (Contemporaneous surveillance is “work product,” but “substantial need” due to relevance, importance and substantial impact, and no “substantial equivalent…without undue hardship”).
“The Fourth Circuit has recognized that contemporaneous witness statements “constitute unique catalysts in the search for truth in the judicial process,” noted 2015 Galloway, supra at *3. “Memory inevitably faces and with it the accuracy of witness statements. ***Accounts rendered from fresh recollections are universally held to be more reliable than those given after time has passed. Therefore, ‘courts have widely found good cause to compel the disclosure of a witness statement made at the time of the accident’.” Id. (citations omitted).
“Accurate recordings of [witness] recollections are of paramount importance to [Plaintiff’s] ability to prepare his case. *** A deposition based on two-year-old memories is not the substantial equivalent of a witness statement taken a week after the accident,” explained Galloway. Id. at *4. “Neither is the [witness] statement to the police substantially equivalent.” Id.
Galloway continued that “contemporaneous witness statements have inherent significance because they record a witness’ fresh recollections. This significance is fully distinct from any impeachment value they may also have and can independently warrant disclosure when the movant lacks their substantial equivalent. As I find that the [witnesses’ statements are inherently valuable as contemporaneous recollections and [Plaintiff] does not have access to their substantial equivalent, [Plaintiff] need not make any showing of the statements’ impeachment value for his motion to succeed. Id.
“This discovery dispute does not present a situation where one party seeks to build his case on the back of his opponent’s strategy, theories, and impressions,” delineated Galloway. “It involves equal access to important factual information. ‘Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.’ A lawsuit ‘is not a sporting event, and discovery is founded upon the policy that the search for truth should be added.’ The [witnesses’] sworn statements undeniably further the search for truth.” Id. at *5.
Memory or Inconsistency
Also in Lopez v. Woolever, 62 Va. Cir. 198, the court noted that witnesses being unable to remember their own statement to the insurer created substantial need. In Tabb v. Jackson, 2 Va. Cir. 406, counsel represented that the statement would show inconsistency was sufficient to create substantial need.
Prevent Fraud-Accident Investigation
Finally there is the issue of whether the defendant should be allowed to potentially play fast and loose with the facts. If the defendant has a statement from a witness that is material and does not have to disclose it, that may allow the defendant to play fast and loose. In other words the defendant may present evidence contrary to that statement. Even though it knows that it has facts that would undermine that position. Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992) That should not be allowed.
Accident Investigation-Auto and Premises
As part of any accident investigation you should consider the following:
- Get a copy of the Crash Report from the police department that investigated. As part of that request, make sure that you ask for any photographs.
- Contact the investigating officer as identified on the Police Report and get the names and contact information of any and all witnesses. The officer may have notes of the investigation. If so, ask for those.
- Do a FOIA request to the local emergency 911 service to get the recording of any phone calls and the text of any messages.
- Do a FOIA request to the local government to get any aerial photographs of the scene of the crash as the scene existed on the date of the crash.
- Check with the local government website to see if they have any aerial photographs of the scene of the crash.
- Search Google Earth to see if there are any aerial photographs of the scene of the crash.
- Check Google Street View to get any photographs of the scene of the crash.
Premises
- If there are any issues relating to the ownership of private property, do a title search to determine who owns the land where the incident occurred. If there was some obstruction on nearby private property, do a title search as to that piece of real estate to determine ownership.
- If there are any issues relating to private real estate, check with the Zoning Office to see whether or not there is a Certificate of Occupancy or what may be called a Non-Residential Use Permit for that particular property.
- If there is an issue of real estate involved, do a FOIA request to the local Treasurer to find out who holds the business license for that address.
- Visit the scene to see if there are any fixed cameras in the area. Then contact the owner of those cameras to see if they might have any information about the crash.
In dealing with a premises liability case or any case where there is an issue of real estate see the blog on this site entitledPremises Liability Finding the Occupant for an itemization of things that need to be done in any case involving real estate.
Accident Investigation-Contact Us
Call or contact us for a free consult. Also for more info on work product see the Wikipedia pages. Also see the post on this site dealing with work product issues.