The Southern District of Mississippi held that neither the attorney-client privilege nor the work product doctrine protected communications related to the insurer’s advice-of-counsel defense after the insurer produced a coverage opinion during discovery.
After her home was damaged by fire, Sandra Willis filed a claim with her insurance carrier, Allstate Insurance Company. After initiating its investigation, Allstate hired attorney David Waldrop to determine the extent of coverage under Willis’s policy. Waldrop produced a coverage opinion upon which Allstate relied in denying Willis’s claim. After Allstate denied her claim, Willis sued Allstate for breach of contract and bad faith.
During discovery, Allstate provided Willis with a copy of Waldrop’s coverage opinion to advance an advice-of-counsel defense, but withheld documents relating to communications with Waldrop. Soon after, Willis subpoenaed Waldrop for his “entire claim file” and all written communications between Waldrop and Allstate. Allstate moved to quash the subpoena, claiming that the documents were protected by the attorney-client privilege and the work product doctrine. While Allstate conceded that it waived the privilege with respect to the coverage opinion that it had provided to Willis, it nonetheless maintained that the waiver did not extend to Waldrop’s entire file. Allstate argued that because the coverage opinion did not mention other documents in Waldrop’s file, their content was not at issue.
The court held that Allstate could not use its coverage opinion to present an advice-of-counsel defense, yet deny Willis access to other documents which would provide needed context for understanding the opinion. Because Mississippi holds that waiver applies to all documents relating to the same subject matter, the court found that Allstate had waived the attorney-client privilege for all communications with Waldrop reflecting “coverage advice or opinions related to Plaintiff’s claim for insurance proceeds.”
Allstate also argued that the work product doctrine shielded the documents from discovery because the coverage opinion was not prepared as part of Allstate’s daily course of business, but was rather prepared in anticipation of litigation. The court disagreed, finding that the coverage opinion was prepared in the course of Allstate’s routine investigation of Willis’s claim. Moreover, the court determined that Allstate waived any work product protection it might have had when it put coverage counsel’s opinion at issue.
Consequently, the court required Allstate to produce all written communications and notes between Allstate and Waldrop related to Willis’s claim. The court did not, however, require Waldrop to produce cases or research that he relied upon in drafting his opinion, determining that such materials did not bear on Allstate’s asserted defense.