“softer” language that allows for the exer-
cise of discretion. For example, rather than
use “must,” “always,” and “never,” manuals
can approach relevant issues with phrases
like “where appropriate, consider.”
ical items and try to negotiate resolutions
with insureds’ attorneys. Most of the time
courts will rule against an insurer resisting
discovery unless the insurer can make a
strong showing of privilege, extreme bur-
federal judges are growing increasingly impatient
with discovery disputes and expect there to be a
free flow of potentially relevant information and
What are some lessons from Bayley Construction v. Wausau Business Ins.?
Both cases convey two important lessons: First, as I’ve already noted, claims
professionals need to approach their work
with the understanding that everything
they write might later be the subject of deposition questioning or a trial exhibit. Second, insurers should carefully pick their
battles when they resist discovery in coverage litigation.
In deciding whether to refuse discovery,
insurers should focus on only the most crit-
den, and/or total irrelevance. And losing an
early discovery motion can set the tone for
the entire litigation either by emboldening
the insured or angering the court.
What can you tell us about the evolution
of guidelines for discovery of claims
correspondence in recent years?
Federal judges are growing increas-
ingly impatient with discovery disputes
and expect there to be a free flow of po-
tentially relevant information and docu-
ments. Unless an insurer can show that it
has “bent over backwards” to avoid mo-
tion practice, many judges now award at-
torney’s fees without hesitation. Insureds
and their counsel now frequently try to
wipe out any privilege that might normal-
ly apply to attorney communication doc-
uments and internal policy documents.
Dana ferestien is a member in the
Seattle, Wash. office of Williams kastner
and a part of the firm’s business litigation
practice group and insurance team. he
may be reached at firstname.lastname@example.org; 206-233-2892.