A question that often arises in insurance cases is whether policyholders are entitled to discover their insurer’s claim file. Insurers often seek to protect these files by asserting that they were prepared by counsel and, therefore, are subject to the attorney-client privilege. This, in turn, raises an interesting question: was the insurer’s counsel acting in her capacity as a lawyer, or not?
As insurers increasingly turn to outside counsel to assist them in responding to policyholder claims, this issue has taken on increasing significance. Neil Posner, chair of the firm’s Policyholders' Insurance group, discusses the answer to this question in the American College of Coverage Counsel's December 2020 newsletter.