The issue of the discoverability of the contents of insurance company files is one that has vexed litigants and the courts for many years — particularly when the specific items sought to be discovered involve certain types of communications between the insurer and its attorney(s).

In a series of recent cases, the courts have analyzed the insurer's obligation to disclose the contents of its files, including attorney communications with regard to the decision of whether to accept or reject a claim, notwithstanding the insurer's invocation of the "material prepared for litigation" and/or attorney-client privileges — with mixed results.

Before decision is made to pay or reject claim

In Bombard v. Amica Mutual Ins. Co., 11 A.D.3d 647 (2d Dept. 2004), the court stated, as follows:

"The payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business. Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured." (citations and internal quotation marks omitted, emphasis added).