TWO THINGS WITH THE SAME NAME DO NOT MAKE THEM THE SAME: PENNSYLVANIA STATE CASE LAW ON THE WORK PRODUCT DOCTRINE NOT APPLICABLE IN FEDERAL COURT (Philadelphia Federal)

Magistrate Judge Wells addressed the difference between the federal and Pennsylvania work product doctrines in this federal UIM bad faith case.

Under the Federal Rules of Civil Procedure, a party must be anticipating litigation when documents are created to get work product protection. Courts must find the “temporal trigger” to determine when federal work product protection starts, i.e., “the point in the insurance company’s investigation when its activity shifted from ordinary claims evaluation to work performed in anticipation of litigation.” There are two components: (1) when did the insurer subjectively anticipate litigation and (2) when did it become objectively reasonable to expect a lawsuit. Documents created before this time are deemed prepared in the ordinary course of business.

The insurer argued that UIM cases are inherently adversarial, and therefore litigation is anticipated in all UIM cases from inception. It relied only on Pennsylvania state case law for this argument. The court found state case law interpreting Pennsylvania’s work product doctrine did not provide guidance on applying the federal work product doctrine because the doctrine’s application differed in federal and state court.

Absent any effort to “prove the moment when [the insurer] shifted from ordinary evaluation of Plaintiff’s UM claim to subjectively anticipating litigation” or demonstrating “that it was objectively reasonable for it to have anticipated litigation at any precise point in time” the court found the insurer “failed to properly invoke the starting point for application of the work product doctrine … [and] cannot avail itself of that doctrine’s protection.”

Date of Decision: January 24, 2019

Brown-Comfort v. Progressive Insurance, U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 18-2929, 2019 U.S. Dist. LEXIS 11884 (E.D. Pa. Jan. 24, 2019) (Wells, M.J.)