This article was written with the assistance of AI and edited by Angela Sabarese.
In a recent CLM webinar, titled, “Privilege Protocols: Protecting Confidentiality in Claims Investigations,” three experts discussed attorney-client other forms of privilege in litigation. The panel featured Rakhi McNeill, a partner at Waldon Adelman Castilla McNamara & Prout; Sarannah McMurtry, general counsel for First Acceptance Insurance Company, Inc.; and Kimberly Page, a partner at Jones, Skelton & Hochuli, P.L.C., focusing on personal injury and product liability cases across Arizona, New Mexico, and Utah.
Types of Privilege
The discussion centered on three critical types of privilege: attorney-client privilege, work product privilege, and common interest privilege. The speakers emphasized the challenges insurance companies and defense attorneys face in maintaining these protections throughout the claims process, from initial reporting through potential bad faith litigation.
Identifying Privilege
A central theme was the ease with which privilege can be inadvertently waived. As McNeill explained, "It's not the label of the communication that controls whether or not that communication is privileged or not. It's the actual content." This point was reinforced by McMurtry, who cautioned: "Just because we label it privilege doesn't necessarily make it privilege. Think through what we're really asking the attorney to do and how it furthers our legal evaluation of the claim."
Third-Party Risk
The panelists highlighted particular risks involving third parties, including insurance brokers, experts, and vendors. Page warned that "Every time you cc somebody that doesn't have direct involvement in the handling of that claim, you are putting your work product privilege and your attorney client privilege at potential risk."
The presentation underscored the importance of careful file management, strategic communication practices, and understanding jurisdictional differences in privilege law. The speakers emphasized that protecting privilege requires ongoing vigilance and clear protocols, particularly as cases evolve from initial claims investigation through litigation and potential bad faith exposure.