COMMUNICATIONS BETWEEN INSURED, INSURED’S DEFENSE COUNSEL AND INSURER ARE PROTECTED UNDER FEDERAL WORK PRODUCT PRIVILEGE

In Nester, et al. v. Textron, Inc, et al, 2015 WL 1020673 (WD Tex. March 9, 2015), the US Magistrate Judge for the Western District of Texas considered several discovery motions in a personal injury case contending  Plaintiff Nester was injured in 2011 while using a Workhorse cart manufactured by Textron. The discovery motions centered on obtaining information about a 2005 fatal accident and its investigation. Among the material withheld from production under claims of privilege were documents consisting of communications between Textron’s “in-house counsel, outside counsel, in-house counsel representative, Textron Personnel and Textron’s insurance carrier representative” regarding developments in the instant case.

The Magistrate first recognized: “Defendants have not met their burden to establish this document is protected under the Texas attorney-client privilege; there is nothing in the privilege log or the document itself that would show whether the insurance carrier was a joint client along with Textron, and Texas law does not recognize a general insurer-insured privilege.”

The Magistrate later recognized documents between the insured, its counsel and its liability carrier were protected under the federal work product privilege in Fed.R.Civ.P. 26(b)(3) because it specifically protects from disclosure “documents and tangible things that are prepared in anticipation of litigation or for trial or by another party or its representative (including the other party’s … insurer or agent).” (Bold in original.)