Are statements stored with insurance companies detectable?

In order to have a meritorious personal injury claim, the first thing a plaintiff will need to prove is that the another party is responsible for their injuries. In motor vehicle collisions, a party that does not obey the rules of the road is usually responsible for causing the collision and subsequent injuries. All drivers are expected to know the rules of the roadbut, unfortunately, drivers involved in an automobile collision often disagree about what happened.

Once a motor vehicle accident is reported to an insurance company, the insurance company will ask its insured to make a recorded statement about what happened. This is standard insurance company procedure. In local cases, such as trips and falls, the insurance company will also ask the parties involved for a recorded statement. In situations where liability is disputed, personal injury cases generally cannot be resolved without litigation. As part of Discoveryplaintiff’s attorneys will normally request the defendant’s recorded statement given to their insurance company.

In most cases, defense attorneys object to providing recorded statements made to insurance companies, claiming that such statements are “privileged” under the work product doctrine and therefore untraceable.

What is the doctrine of work product?

The work product doctrine allows a party to claim that any documents or tangible things prepared in anticipation of litigation or for trial by the party or their representative are privileged. The only exception is if the party requesting these preferred materials can demonstrate that it has a substantial need for the materials requested and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. (Go. Sup. Ct. R. 4.1(b)(3))

In determining whether a requested recorded statement is available for inspection, the first question is whether the statement was obtained in the ordinary course of business or whether the statement was made in anticipation of litigation. The courts have used two tests to determine whether the recorded statement enjoys work product privilege and, unfortunately, the Virginia circuit courts are split on which test to use.

Clear line rule

The first test is a clear line rule called the Thomas Organ Ruler. This straight line rule comes from the Fourth Circuit and states that any report or statement that was not requested or prepared by an attorney is deemed to have been made in the ordinary course of business.

When this bright line rule is applied, recorded statements will generally be accessible because insurance companies normally collect such statements before an attorney is appointed or engaged.

Case-by-case testing

The second test is a case-by-case test. When courts use the test on a case-by-case basis, they ask whether “a reasonable person in the place of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced.” Piland v. White, 85 Will. Cir. 4547-48. In this case, the judge looks at several factors to determine whether litigation was expected or reasonably expected. These factors include the severity of the injuries sustained, the negligence of either party, would the accident victim pursue a claim, and did the victim not have the resources to pay the medical bills. . Additionally, factors include whether liability could be established, whether the agent was taking statements in non-litigation activities, whether the insurer was investigating a claim in the same manner as all other claims had investigated and, finally, whether the documents were produced before the insurer formally denied the claim.

When the case-by-case test is applied, the discoverability of recorded statements will depend on the specific facts of the case in question.

The Virginia Supreme Court did not address the issue of discoverability of these taped statements. Without the direct authority of the highest court, the possibility of discovering these statements will depend on the court, the judge and the specific facts of the case. At Curcio Law, we are committed to supporting our clients throughout the process following a car accident. It is important to consult experienced personal injury lawyers, such as us at Curcio Law, to compel the production of these recorded statements. Call or text us at 703-836-3366, contact us in line or email [email protected]

Kristan F. Talley