Description
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.
Presented By
Ms. Enerson's practice encompasses a broad range of complex litigation matters across multiple industries. For the past 25 years, she has represented clients in insurance and consumer class actions in state and federal courts throughout the country. Ms. Enerson's experience includes defending class actions involving insurance claims handling issues, underwriting practices and insurance bad faith, violations of consumer privacy and protection laws, deceptive trade practices, data breach, and other cyber breach-related matters. She has significant trial and appellate experience and has a successful track record of defeating class certification. Ms. Enerson's practice also encompasses representing insurance companies in complex insurance coverage disputes. Her experience includes representing life insurers in cost of insurance, fraud and premium audit disputes, as well as representing commercial liability insurers in construction defect, long-tail environmental pollution, asbestos, negligent security, commercial auto, and major catastrophe claims. Ms. Enerson routinely counsels clients on the avoidance of bad faith and claims-handling best practices and has represented clients in market conduct examinations throughout the country.
Ms. Moore represents policyholders in insurance coverage and bad faith litigation in state and federal courts. Ms. Moore has handled numerous complex cases and tried insurance coverage, negligence and bad faith cases to policyholder verdicts. She is a frequent speaker on insurance law issues.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, December 16, 2025
- schedule
1:00 p.m. ET./10:00 a.m. PT
I. Overview of the attorney-client privilege in the tripartite relationship
II. Implied waiver of the privilege in bad faith litigation
III. Piercing the privilege: plaintiff perspective
IV. 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?
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Jury Selection in Insurance Litigation: Practical Guidance for Bad Faith and Coverage Cases
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