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In Richardson v. Government Employees Insurance Company, 200 Wash.App. 705, 403 P.3d 115 (2017), the Washington Court of Appeals held that an insurer’s post-litigation documents and information protected by attorney-client privilege or work product doctrine are not discoverable in an insured’s UIM bad faith lawsuit.

Plaintiff Richardson was in a motor vehicle accident with a USAA driver.  Her claim against that driver settled for policy limits.  Richardson then made PIP and UIM claims to her insurer, GEICO.  GEICO denied part of the PIP claim and all of the UIM claim.  Richardson then filed a bad faith lawsuit against GEICO.

The issue before the Court of Appeals was whether GEICO’s file materials, created after the litigation was commenced, were discoverable and whether the attorney-client privilege had been waived.  Richardson argued that in bad faith claims there is a presumption that the attorney-client privilege does not apply.  The Court of Appeals concluded that, as discussed in Cedell v. Farmers Inc. Co. of Washington, 176 Wash.2d 686, 295 P.3d 239 (2013), there is no such  presumption in a UIM bad faith claim.  That is because the insurer steps into the shoes of the original tortfeasor, making all defenses that are available to the original tortfeasor also available to the insurer.  Richardson differs from Cedell in that the discovery at issue was created after the insured filed suit.  The Court held: “To the extent that the [trial court] order compels GEICO to produce post-litigation documents or information protected by the attorney-client privilege or work product doctrine as to Richardson’s UIM bad faith claim, we conclude that the trial court abused its discretion.”

Link to opinion.