Insurance Claims: Privilege and Work Product Challenges After TransCanada and Cedell

Navigating Discovery Requests and the Applicability of the Privilege in Insurance Litigation

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

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Conducted on Wednesday, November 12, 2014

Recorded event now available

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Course Materials

This CLE course will drill down into important recent decisions that have raised serious implications for an insurer’s assertion of the attorney-client and work product privileges in response to a discovery request. The panel will explain the impact of these decisions on the applicability of a privilege claim over investigations conducted by an insurer.


In its recent decision in National Union v. TransCanada Energy, a New York Appellate Division court held that materials sought from the insurer were not protected by the attorney-client privilege and work product doctrine and were not materials prepared in anticipation of litigation. This decision raises new questions for insurance counsel on discovery requests and investigations conducted by an insurer—and on the applicability of the common-interest exception.

The Washington Supreme Court's Cedell v. Farmers Ins. Co. of Wash. ruling also discusses the applicability of the attorney-client privilege to a claim for insurance bad faith, focusing on a first-party claim and the civil-fraud exception to the privilege. The court held that, in such claims, there is a presumption of no attorney-client privilege, and outlined the required elements to assert the privilege.

Listen as our experienced panel of insurance counsel provides their perspectives and analysis on the decisions and their implications for the assertion of the attorney-client privilege and work product privilege, and other defenses to discovery requests.



  1. Attorney-client privilege between attorney and insurer
  2. Work product privilege in insurance disputes
  3. Transcanada - 2014 NY Slip Op 05606 (App. Div. July 31, 2014)
  4. Cedell - 295 P.3d 239 (Wash. 2013)
  5. Implications for discovery requests in first- and third-party actions


Our panel will review these and other key issues:

  • The impact of TransCanada and Cedell on the work product and attorney-client privileges in insurance litigation
  • Implications for discovery requests in first- and third-party actions, including bad faith claims
  • Ramifications for pre-litigation investigations conducted by an insurer


Laura A. Foggan
Laura A. Foggan

Wiley Rein

Ms. Foggan serves as lead counsel in trial and appellate matters representing insurance companies in complex...  |  Read More

Lamden, Seth
Seth D. Lamden

Neal Gerber & Eisenberg

Mr. Lamden concentrates his practice on assisting policyholders in enforcing their rights to insurance coverage. He has...  |  Read More

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