Discoverability of Insurance Claims Files
If an insurance investigation is done in anticipation of litigation, then that investigation file is protected from discovery by the opposing party. However, if the opposing party can demonstrate that it has a substantial need for the information and is unable to obtain the information by other means, it can be discovered. There is no absolute protection. If the investigation has begun without any anticipation of litigation and it subsequently becomes apparent to the investigator that litigation may result, the documents prepared by that investigator from the start of the investigation to the point at which it became apparent litigation might result are discoverable by the opposing party. The important question to determine discoverability is whether something in the claim file was prepared in anticipation of litigation.
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