UPDATE -- Blurred Lines

In that case, a New York trial court concluded that documents relating to various insurers' claim investigation, most of which were created before the insurers' denial of coverage, were discoverable on three grounds: 1) coverage investigations are an “ordinary business activity for an insurance company” and do not constitute legal advice; 2) because the insurers did not produce evidence showing when the coverage decision was actually made, the court determined that the decision was made when the denial letter was issued, such that any documents created prior to the denial letter are not protected work product or trial-preparation materials; and 3) the attorneys freely communicated with all of the insurers, which are independent third parties to each other, and there was no attempt to segregate the communications or keep them confidential; thus, the common interest privilege exemption did not apply and the parties waived any attorney-client privilege that may have otherwise applied.

On Feb. 25, 2014, New York's appellate division for the first department affirmed the lower court's decision in TransCanada, holding that documents generated in connection with outside counsel's investigation of a claim, and coverage advice in connection therewith, are tasks performed in the ordinary course of an insurers business and, therefore, beyond the scope of the attorney-client or attorney work-product privileges. National Union Fire Ins. Co. of Pittsburgh, Pa. v. TransCanada Energy USA, Inc., No. 650515/2010, 2014 NY Slip Op 01283 (Feb. 25, 2014). Moreover, the appellate court found that such documents are also not privileged as materials prepared in anticipation of litigation where litigation is neither pending nor reasonably anticipated by the party seeking to invoke the privilege.