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The Common Interest Doctrine and the Investigation of First-Party Claims

By Catherine A. Mondell and Kathryn R. Smith
June 02, 2014

It is essential for parties to be able to determine with a high degree of certainty whether or not communication will be protected from disclosure by the attorney-client privilege or the work-product doctrine. As the Supreme Court observed, “an uncertain privilege ' is little better than no privilege at all.” Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).

As we noted in an article earlier this year, a recent case in New York state court, National Union Fire Insurance Co. v. TransCanada Energy, USA, Nos. 650515/2010, 400759/2011, 2013 WL 4446917 (N.Y. Sup. Ct. Aug. 15, 2013), aff'd 981 N.Y.S.2d 68, 69'70 (N.Y. App. Div. 2014), determined that the documents under review were not privileged, and went on to observe in dicta that the common interest doctrine would be inapplicable in a circumstance where there was no pending or reasonably anticipated litigation. That comment in TransCanada has the potential to raise uncertainty regarding the scope of protection in the context of the investigation and adjustment of insurance claims, while blurring the lines between attorney-client privilege, on the one hand, and work-product protection on the other. This article reviews the basic principles underlying each form of protection, addresses application of the common interest doctrine to those underlying protections, and discusses concepts key to the application of these protections and the common interest doctrine during the investigation of first-party insurance claims.

A Review of Basic Principles

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