Attorney-Client Privilege in Bad Faith Litigation: Privilege Issues From Perspectives of Policyholders and Insurers

Whether the insurer's claims file is privileged is increasingly at issue in bad faith cases. Courts have articulated various tests for determining when the privilege is waived or does not apply, but these rules often create uncertainty and satisfy no one.

Not every document drafted by counsel and not every communication by counsel is privileged in the claims-analysis context.

Insurers must be careful to avoid waiving the privilege by asserting an "advice of counsel" defense or involving the attorney directly or indirectly as a claims adjuster.

Listen as our authoritative panel of both policyholder and insurer counsel analyzes the attorney-client privilege in the context of the tripartite relationship, the issue of implied waiver of the privilege in subsequent bad faith claims, and best practices for both plaintiff's counsel and defense counsel to either pierce or protect the privilege in bad faith litigation.

1. Overview of the attorney-client privilege in the tripartite relationship
2. Implied waiver of the privilege in bad faith litigation
3. Piercing the privilege: plaintiff perspective
4. Defending or maintaining the privilege: defense perspective

The panel will review these and other key issues:

• Has there been a trend toward the erosion of the attorney-client privilege in bad faith litigation?
• What tests do courts use to determine whether there has been an implied waiver of the privilege?
• How have courts applied the joint defense exception to the attorney-client privilege in bad faith claims?