Take Away: Insurance companies are not strangers to the judicial process. As a result, courts are gaining familiarity with the types of information typically stored by insurers in electronic form. Judges are relying upon this insight when considering an insurance company’s claim that certain electronically stored information (“ESI”) sought in discovery does not exist. When involved in class-action lawsuits and complex litigation, insurance companies often face greater E-Discovery burdens given the large amount of ESI typically involved in those cases. In some instances, courts have appointed Special Masters and/or independent vendors to collect and maintain the ESI, assigning the cost, at least in part, to the insurer. As an upside, today’s online communication tools, such as Facebook and instant messaging, may be fruitful sources of ESI for insurance companies to use in defending against frivolous claims.  

Given the nature of their business, coupled with our highly litigious society, insurance companies are frequent parties to court actions, often in the role of defendant. The increasing use of E-Discovery in lawsuits involving insurance companies has created unique challenges and unique benefits to such companies. The court decisions discussed below are just a sampling of such instances.