In determining when the work product doctrine is triggered, the Northern District of Illinois recently held that, rather than adopting a bright-line rule, the issue should be decided on a case-by-case basis at the court’s discretion. In Club Gene and Georgetti, LP v. XL Insurance America, Inc., No. 20 C 652, 2021 WL 1239197 (N.D. Ill. Apr. 2, 2021), the insured’s steakhouse was damaged in a fire. When the insured sued for coverage, the insurer refused to produce documents prepared in the course of its investigation of the claim on the basis of the work product doctrine. The issue of contention was: at what point in an insurer’s claim investigation can the insurer claim that litigation was reasonably anticipated?
In addressing this question under Illinois law, the court noted that, because litigation can be anticipated at the time almost any incident occurs, a “substantial and significant threat of litigation” is required before an insurer can invoke the work product doctrine and decline to produce a document requested in discovery. To demonstrate the existence of this “threat,” an insurer must show “objective facts establishing an identifiable resolve to litigate.” The fact that litigation actually ensues or that a party has retained an attorney, initiated investigations, or engaged in negotiations over a claim, is “insufficient to dispositively establish anticipation of litigation.”
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