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Discovery in Bad Faith Insurance Litigation: Key to Successfully Proving or Defending Claims

Navigating Scope of Discovery, Document Production, and Joint Client Exception to and Implied Waivers of Privilege

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, October 17, 2023

Recorded event now available

or call 1-800-926-7926

This CLE course will discuss unique discovery requests that arise when a policyholder argues that its insurer's investigation and subsequent denial of its claim was arbitrary, capricious, and undertaken "in bad faith." The webinar will cover what information to request, how to request the information in written discovery in a way that makes boilerplate objections look frivolous, and how insurers can demonstrate that overly broad requests for materials related to other claims are improper.


Bad faith lawsuits challenge the propriety of claim denial and the integrity of the claim denial process. Discovery of the right information and documents usually means the difference between winning and losing the case. Plaintiff's counsel must identify objectively unreasonable, reckless, and malicious conduct, evidence of which is generally deep inside ostensibly "confidential" or "privileged" files.

Defense counsel must limit the scope of the plaintiff's discovery and effectively manage document production to keep the focus on whether there was a reasonable basis for the denial of a plaintiff's claims. Defense counsel must also consider discovery that calls into question whether the plaintiff's conduct was objectively reasonable and/or whether the plaintiff was trying to set up the insurer for a bad faith claim.

Expert witnesses may be a viable option for a plaintiff to prove bad faith claims and defense counsel must be prepared to challenge the plaintiff's witness testimony. Both sides need to prepare to address the discoverability of information needed to support or defend punitive damages claims.

Bad faith claims may include battles over whether the work-product doctrine protects certain materials. Unique attorney-client privilege issues also arise, such as the joint client exception to the privilege and any implied waivers of the privilege during claim investigation.

Listen as our panel of authoritative practitioners provides its perspectives on the evolving state of the law and effective strategies for obtaining or defending discovery in bad faith insurance claims.



  1. Plaintiff perspective
    1. Identifying conduct giving rise to bad faith claim
    2. Identifying sources of documents, information, and testimony
  2. Defense perspective
    1. Limiting the scope of the plaintiff's discovery
    2. Identifying documents and testimony to refute claims
  3. Other relevant issues
    1. Attorney-client privilege
    2. Work product
    3. Punitive damages
    4. Expert witnesses


The panel will review these and other key issues:

  • What is discoverable, and how can one limit or best manage discovery?
  • What role does the attorney-client privilege play in shielding disclosures?
  • Can the plaintiff use expert witnesses to prove the claim?
  • What are the limitations on an expert's testimony?
  • What are the cost issues to consider--and can cost-shifting be implemented?


Dinneen, Susan
Susan E. Dinneen

Founding Member
Strauss Massey Dinneen

Ms. Dinneen is an experienced litigator and advisor, defending her insurance company clients against fraud,...  |  Read More

Gilinsky, Marshall
Marshall Gilinsky

Anderson Kill

Mr. Gilinsky is an experienced commercial litigator who applies his complex analysis skills with extensive...  |  Read More

Jacobus, Alan
Alan P. Jacobus

Alan P. Jacobus, Attorney at Law

Mr. Jacobus' practice over the past decade has largely centered on high risk, high value insurance coverage...  |  Read More

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