Discovery of Insurance Reserves, Reinsurance, and "Other Claims" Files in Coverage and Bad Faith Litigation

Our panel of insurance practitioners will analyze and discuss the arguments raised by both policyholders and insurers, as well as the recent trends in case law, regarding the discoverability of reinsurance information, reserve information, and “other claims” files in coverage and bad faith litigation.

Policyholders often seek reinsurance information to establish dishonest or improper conduct on the part an insurer. Reinsurance information includes communications from insurers to reinsurers regarding the risks they insure. Policyholders often request this information because it may show the insurer’s understanding of coverage under the policy, which can be used to refute or contradict the position taken by the insurer with respect to the individual policyholder’s case. Insurers try to preclude discovery of such information on various grounds, including relevance, confidentiality and public policy. The panel will discuss the applicability of these arguments in various scenarios, with reference to the most recent trends in case law from around the country.

Likewise, policyholders frequently seek information regarding an insurer’s loss reserves—i.e., the money an insurer sets aside to cover its potential liabilities. Policyholders argue that this information reflects the insurer’s assessment and/or valuation of the claim, which may differ from the position taken by the insurer in the coverage dispute. Insurers seek to preclude discovery of such information largely on relevance and privilege grounds. The panel will discuss the varying purposes and methodologies of loss reserves and analyze the factors that bear on their discoverability.

Finally, policyholders also seek information regarding similar insurance claims filed against the insurer to demonstrate the insurer’s inconsistent interpretation of the policy language. Insurers often object to the production of these files on grounds of relevancy, confidentiality and burden. Our panel will analyze the discoverability of “other claims” files and discuss the potential uses such files can have in coverage litigation.

1. Discovery information and files sought
   1. Reserve information
   2. Reinsurance information
   3. “Other claims” files
2. Objections: making and opposing
   1. Relevancy
   2. Confidentiality, privilege and work product objections
   3. Burdensome
3. Usage in coverage vs. bad faith litigation

The panel will review these and other key issues:

• The scope of evidence regarding insurance claims reserves that is discoverable and how to best limit or best manage discovery of this information
• Relevancy of reinsurance information in coverage and bad faith litigation
• Scope and relevancy of “other claims” files in coverage disputes