Scott v. Peterson

Summary

The Supreme Court of Oklahoma reviewed an extraordinary-writ proceeding concerning homeowners' efforts to obtain a roofing contractor's liability-insurance claims file. The court held that the parties asserting attorney-client privilege and work-product protection had not provided sufficient factual support, and directed the trial court to vacate its discovery orders, require a privilege log, and receive the documents under seal for possible in camera review. The court did not decide whether the insurer-insured relationship created attorney-client privilege or whether particular claims-file documents were protected.

Holdings

1. A party resisting discovery must expressly assert the privilege or protection and provide sufficient facts describing particular documents or document classes to permit adjudication; a blanket assertion that an entire insurer claims file is privileged or protected is insufficient.
2. The party asserting work-product protection must first establish that specific materials were prepared in anticipation of litigation or for trial, or that they contain protected mental impressions, conclusions, opinions, or legal theories. Only after that showing does the burden shift to the requesting party to establish substantial need and inability to obtain the substantial equivalent without undue hardship for ordinary work product.
3. When an asserted privilege or protection lacks the factual specificity necessary for adjudication, the district court must exercise its authority under § 3237(A)(2) to order the resisting party to file a privilege log and submit the documents under seal before ruling on the claim.
4. The court did not decide whether a liability insurer with a duty to defend has an attorney-client relationship with its insured for purposes of third-party discovery or whether any documents in NAICO's claims file are protected.

Questions Presented

1. Whether the district court abused its discretion by protecting the entire insurer claims file from discovery based only on blanket assertions of attorney-client privilege and work-product protection.
2. Whether the party resisting discovery bears the initial burden of identifying and factually supporting particular documents or categories of documents as privileged or protected.
3. Whether the district court was required or authorized under 12 O.S. Supp. 2002 § 3237(A)(2) to order a privilege log and sealed submission of the documents before adjudicating the asserted privilege and protection.
4. Whether the Oklahoma Supreme Court should determine whether a liability insurer with a duty to defend has an attorney-client relationship with its insured or whether particular claims-file documents are protected.

Disposition

writ_granted