From Property Casualty 360: The attorney work-product privilege is one of the three primary privileges incorporated into Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5). It protects materials prepared by an attorney or others in anticipation of litigation, ostensibly shielding materials that would disclose the attorney’s theory of the case or trial strategy. President Lyndon B. Johnson originally signed FOIA into law by on July 4, 1966 and it went into effect the following year.
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In a recent $70 million lawsuit involving turbine damage, a New York court held that an insurer cannot withhold pre-denial documents and communications simply because an attorney conducted the coverage investigation. In essence, the court asserted that neither the attorney-client privilege nor the work-product doctrine applied to reports prepared by outside counsel because the reports were created before the insurers made a “firm decision” to either approve or deny the claim, which involved $5 million in property damage and another $65 million in business interruption (BI) losses.
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