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Insurer Claim Files: Privilege and Work-Product Protection
In coverage litigation and bad faith actions between insurers and policyholders, courts' views as to the discoverability of claim file material have varied significantly, depending on the jurisdiction and the specific fact pattern presented. Privilege issues concerning insurer claim files have proven difficult because it is in the 'very nature of an insurer's business to investigate and evaluate the merits of claims.' Cutrale Citrus Juices USA, Inc. v. Zurich Am. Ins. Group, 2004 WL 5215191 at *2 (M.D.Fla. Sept. 10, 2004). Courts will thus often face a highly fact-specific inquiry concerning whether claim file documents are prepared in 'anticipation of litigation' and therefore qualify as work product.
Similarly, under the attorney-client privilege, only the provision of legal advice is protected; relying on this truism, some courts have opined that, '[i]n the insurance context, to the extent that an attorney acts as a claims adjuster, claims process supervisor, or claims investigation monitor, and not as a legal advisor, the attorney-client privilege does not apply.' Country Life Ins. Co. v. St. Paul Surplus Lines Ins. Co., 2005 WL 3690565 at *5-7 (C.D.Ill. Jan. 31, 2005).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.