Understanding Insurance Privilege

In the high-stakes world of insurance claims and litigation, the documents inside your claim file are more than just paperwork—they’re often central to the outcome of your case. But what rights do policyholders have when it comes to accessing these documents, and what protections do insurance companies claim to shield them? At Daly & Black, P.C., we help clients understand the rules of engagement—starting with the concept of insurance privilege.

What Is Insurance Privilege? 

Insurance privilege refers to the legal protections that shield certain communications and documents in an insurance claim from disclosure. The purpose is to protect sensitive internal communications, particularly those involving legal strategy, assessments of liability, or attorney-client advice.

However, not all documents in an insurance claim file are privileged, and insurers often overreach in asserting privilege to avoid scrutiny.

When Privilege Applies and When It Doesn’t 

Many insurance documents are confidential by default, but privilege only applies under specific legal conditions:

Attorney-Client Privilege:

Applies to confidential communications between legal counsel and the insurer concerning legal advice, not routine claim handling.

Work Product Doctrine:

Protects materials prepared in anticipation of litigation, but not all claims qualify as “anticipated litigation.”

Policyholder Access:

In many cases, policyholders have the right to review their own claim documents unless a specific privilege justifiably applies.

Disputes Over Privileged Claim Files 

Disagreements frequently arise over whether an insurer is improperly withholding documents. These disputes can delay litigation or settlement and may require judicial intervention to resolve. Situations where privilege is challenged include:

• Allegations of Bad Faith
• Suspected Fraud
• Inconsistent Discovery Responses

In such cases, courts may conduct an in-camera review—a private judicial inspection of the documents—to decide if the insurer’s privilege claim is legitimate. This often happens after one party challenges the claim through a motion to compel. Under federal rules—specifically Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure—when privilege is disputed, courts have the authority to step in, sequester the documents, and conduct an in-camera review to determine what must be disclosed.

However, the specific procedures and thresholds for judicial intervention may vary depending on state law and the jurisdiction in which the dispute arises. If privilege was improperly claimed or waived, insurers risk losing protection over those documents—and potentially more.

Why Legal Representation Is Crucial 

Trying to access or protect privileged insurance documents without legal guidance is risky. Attorneys play a pivotal role in:

Navigating Discovery Requests:

Ensuring compliance with legal procedures while contesting overbroad privilege claims. This includes preparing and responding to interrogatories, subpoenas, and motions to compel in a way that defends your rights and challenges excessive privilege assertions by the insurer.

Protecting Client Interests:

Advocating for full access to claim documents that may be critical to proving insurance bad faith, delays, or misrepresentations. Skilled legal counsel can pinpoint withheld materials that may turn the tide of litigation or settlement negotiations.

Preventing Waiver:

Helping clients preserve all applicable privileges by maintaining clear boundaries between protected and non-protected communications. An attorney ensures that sensitive materials are not inadvertently disclosed in a way that could weaken your legal position.

At Daly & Black, P.C., we aggressively challenge wrongful denials and strategically assert legal privilege where appropriate. We understand the stakes and fight to make sure the discovery process works in your favor.

Best Practices for Managing Insurance Claim Documents 

Whether you’re filing a claim or involved in litigation, understanding how to manage your documentation is key:

• Keep Your Own Records: Maintain copies of all communications with your insurer, including adjuster notes and correspondence.
• Request Documentation Promptly: Don’t wait to ask for your file; early access can uncover red flags or gaps in the insurer’s response.
• Consult with Counsel Early: Let your attorney advise what’s protected, what’s not, and how best to leverage what’s in your file.

The Daly & Black Difference 

Most people don’t realize how critical access to insurance claim documents can be until it’s too late. We do. Daly & Black, P.C. is equipped to break through privilege disputes, expose bad faith tactics, and ensure your rights aren’t buried in red tape. We’ve taken on the biggest names in insurance and won.

If you’re facing a complex dispute involving insurance document production or claim file access, don’t go it alone.

Schedule your free consultation with Daly & Black, P.C. today. Let us go to work for you.

FAQ 

What is insurance privilege and how is it different from general confidentiality?

Insurance privilege specifically protects certain communications—like those involving legal counsel or litigation strategy—from being disclosed in court. General confidentiality refers more broadly to sensitive or private information that isn’t necessarily shielded by law.

Can I access my own insurance claim file?

In many cases, yes. Policyholders often have the right to access their claim documents, though insurers may withhold certain materials by citing privilege. Legal support can help you contest unjustified withholdings.

What happens if an insurer wrongfully claims privilege to hide bad faith?

Courts can compel disclosure and may penalize insurers for abusing privilege. If misconduct is uncovered, it can strengthen your case and potentially lead to punitive damages.