The opinion of the court was delivered by: Judge Conaboy
By Memorandum and Order of December 2, 2009, the Court directed Defendant to submit certain documents for in camera review. (Doc. 33 at 17, 19.) On December 22, 2009, Defendant submitted the documents and accompanying correspondence (Doc. 35).
For the reasons discussed below, we conclude that certain documents submitted are entitled to protection of the work-product doctrine because they were prepared in anticipation of litigation and other documents are not entitled to protection for the reasons noted.
Our review of the documents submitted is limited to consideration of whether the work-product doctrine protects the documents from discovery. (See Doc. 33 at 8.) The work-product doctrine, as it applies to discovery matters, is governed by Rule 26(b)(3).
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders disclosure of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
Fed. R. Civ. P. 26(b)(3).
Pursuant to Rule 26(b)(5), the party claiming privilege or seeking to protect trial-preparation materials must "expressly make the claim." Fed. R. Civ. P. 26(b)(5)(A)(i). The party must also "describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A)(ii). The party claiming work product protection has the burden of proving that the material was in fact prepared in anticipation of litigation. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2001). Like the attorney- client privilege, the work-product privilege is to be strictly construed. See, e.g., Cooper Hospital/University Medical Center v. Sullivan, 183 F.R.D. 119, 128 (D.N.J. 1998) (citing Westinghouse Electric Group v. Republic of the Philippines, 951 F.2d 1414, 1429 (3d Cir. 1991)).
Work product prepared in the ordinary course of business is not protected from discovery. Id. "Even after litigation is justifiably anticipated, routine or ordinary investigations or reports are not work-product and may be obtained as normal discovery without a special showing of need." Harper v. Auto- Owners, Inc. Co., 138 F.R.D. 655, 661 (S.D. Ind. 1991); see also American Home Assurance Co. v. United States, Civ. A. No. 09-CV-258 (DMC), 2009 WL 3245445, at *2 (D.N.J. Oct. 7, 2009) (quoting Harper, 138 F.R.D. at 661)).
An insured seeking documents and reports in his insurer's claims file presents a special problem for application of the work product rule because it is the very nature of an insurer's business to investigate and evaluate the merits of claims. Reports and documents produced for this purpose will likely be relevant to later litigation over a claim as well.... Most courts have held that documents constituting any part of a factual inquiry into or evaluation of a claim, undertaken in order to arrive at a claim decision, are produced in the ordinary course of an insurer's business and not work product.
Harper, 138 F.R.D. at 662 (citing Schmidt v. California State Auto Ass'n, 127 F.R.D. 182, 184 (D. Nev. 1989)).
Protection of the work-product doctrine may be waived if the document is disclosed to an adversary. Westinghouse, 951 F.2d at 1429. "[A] party who discloses documents protected by the work- product doctrine may continue to assert the doctrine's protection ...