The Pennsylvania Superior Court recently addressed the discoverability of the contents of the plaintiff’s attorney’s files in the context of bad faith litigation in the matter of Rhodes v. USAA Cas. Ins. Co., A.3d —-, 2011 Pa.Super. 204 (Pa.Super. 2011). In Rhodes, the plaintiff was injured as a result of a motor vehicle accident. After recovering from the insurer for the responsible party, Rhodes make a claim for undersinsured motorist benefits through USAA. Rhodes made a settlement demand of $175,000 against USAA. In response, USAA offered $5,000. Following negotiation, the offer was ultimately increased to $100,000. Rhodes rejected the offer and filed suit. The suit included both a claim for underinsured benefits and a claim for bad faith pursuant to 42 Pa.C.S.A. 8371 and Pennsylvania common law.
During the course of the suit, counsel for USAA requested that plaintiff’s counsel produce in discovery their entire file, except for those documents protected by the attorney-client privilege. Plaintiff’s counsel objected. Upon motion by the defendant, the trial court entered an Order compelling the plaintiff’s to produce their attorney’s file, excluding any documents protected by the attorney-client privilege. Plaintiff appealed.
On appeal, the Superior Court noted that the standard of review concerning the propriety of a discovery order is whether the trial court committed an abuse of discretion. Gromley v. Edgar, 995 A.2d 1197 (Pa.Super. 2010). The Rhodes argued that the information requested was not discoverable, as it was protected under the attorney work product doctrine and Pa.R.C.P. 4003.3. The work product doctrine provides subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial or for another party or by or for his attorney . . . insurer or agent. The discovery shall not include disclosures of the mental impressions of a party’s attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.
Pa.R.C.P. 4003.3. In response, USAA asserted that plaintiff’s counsel may have withheld certain information concerning the claim, including the date of the plaintiff’s neck surgery. USAA claimed that its conduct in evaluating plaintiff’s claim could only be properly assessed in light of what the Rhodeses knew and when they knew it, and when such information was provided to USAA’s representatives.
The court rejected USAA s argument. In doing so, the court noted that the outcome of a bad faith claim under 42 Pa.C.S.A. 8371 is dependent upon the conduct of the insurer, not its insured. The court indicated that, as the burden upon plaintiff of proving by clear and convincing evidence that the conduct of the insurer constitutes bad faith, the insurer cannot turn the tables and change the focus to the conduct of its insureds. The court further noted that the exception to the production of information concerning conclusions or opinions as to the value or merit of a claim, typically discoverable in bad faith litigation, is directed to insurers, not plaintiffs or their attorneys. See Pa.R.C.P. 4003.3, Explanatory Comment. Accordingly, the order of the trial court was reversed, and the plaintiff s attorney was not required to produce his file contents.
This opinion is important in the context of bad faith litigation, as it provides significant protection to plaintiffs and their counsel from discovery by the insurance company of information contained within plaintiff’s attorney’s files. While bad faith discovery of insurance files typically requires a defendant to open the books , the Superior Court’s opinion in Rhodes holds that this requirement is not a two-way street.