American Zurich Insurance v. Montana Thirteenth Judicial District Court
2012 MT 61
| Mont. | 2012Background
- Zurich seeks a writ of supervisory control to correct a discovery order over a Maynard Letter concerning Peters’s workers’ compensation claim.
- The District Court ordered Roscoe to produce the Maynard Letter, ruling it was neither protected by attorney-client privilege nor by the work product doctrine.
- Kimmel, a Roscoe adjuster, stated he had absolute authority to adjust Peters’s claim and disclosed the Maynard Letter to Roscoe.
- The Maynard Letter was prepared by Zurich’s counsel for Peters’s case and was shared with Kimmel, who then annotated it.
- Peters’s 2008 complaint alleged unfair claims settlement practices; a May 2011 subpoena to Roscoe sought Peters’s entire file related to the claim, which Roscoe resisted as privileged.
- The Montana Supreme Court held the attorney-client privilege did not apply to Roscoe, and there was waiver; however, it ruled the District Court erred only in work-product analysis, yet the outcome on production was correct, leading to dismissal of the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zurich waived the attorney-client privilege by disclosing the Maynard Letter to Roscoe. | Zurich contends third-party disclosure to Roscoe waives the privilege. | Roscoe’s status as a non-party should not affect privilege. | Waiver occurred; Maynard Letter not protected. |
| Whether the common-interest doctrine extends privilege to Roscoe. | Zurich asserts Roscoe shares a common legal interest with Zurich in adjusting the claim. | Roscoe lacks a common legal interest in the adjustment against Peters. | Common interest not established; Roscoe not protected. |
| Whether the Maynard Letter is protected by the work-product doctrine after privilege waiver. | Work product may remain confidential despite waiver of privilege. | Roscoe’s role as a disinterested third party implies no confidentiality of work product. | Roscoe’s disclosure waives work-product protection; however, there is a narrow caveat to common-law limits. |
Key Cases Cited
- Inter-Fluve v. Mont. Eighteenth Jud. Dist. Ct., 327 Mont. 14, 112 P.3d 258 (2005 MT 103) (compelled discovery of privileged material may invoke original jurisdiction)
- Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991) (privilege protects only disclosures necessary for informed legal advice)
- In re Rules of Prof'l Conduct, 299 Mont. 321, 2 P.3d 806 (2000 MT 110) (shared privilege context with insurers and insured; common interests)
- Deloitte LLP v. U.S. Pub. Interest Research Group, 610 F.3d 129 (D.C. Cir. 2010) (work-product waiver analysis depends on adversary status and confidentiality expectations)
- In re Grand Jury Subpoenas, 902 F.2d 244 (4th Cir. 1990) (common-interest and joint defense considerations for extending privilege)
- Palmer by Diacon v. Farmers Ins. Exch., 261 Mont. 91, 861 P.2d 895 (1993) (work-product protection and attorney’s mental impressions are highly protected)