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Fork over the photos

Fork over the photos

October 26
08:07 2020

Fork over the photos

James Simmons owned a residence that was insured under a homeowners policy issued by Avatar Property & Casualty Insurance Company. After damages to his residence, Simmons sued Avatar for breach of contract, alleging that Avatar failed to perform under the policy. During discovery, Simmons served on Avatar a request for production of (1) any and all videos and photographs in Avatar’s possession related to Simmons’ claim in their native digital format and (2) the complete underwriting file with regard to Avatar’s issuance of insurance on the residence and all renewals.

Avatar objected, arguing that the work product privilege applied to the photographs, and petitioned for a writ of certiorari (certiorari is a court process to seek judicial review of a decision of a lower court or government agency).

Avatar further objected, stating “[t]he request also calls for Avatar to produce documents from its claim file and/or documents that relate to its internal claims handling procedures … .” Simmons moved to overrule Avatar’s objections and to compel discovery, arguing that there is no claim file privilege and that the requested information was prepared in the routine, normal course of claims handling.

The court gave Avatar multiple opportunities to explain why the photographs at issue, and only the photographs, were protected by the work product privilege. Each time Avatar again asserted a categorical privilege, arguing, for example, that the photographs were “part of the claims file, and that’s work product.”

Ultimately the court entered an order that required Avatar to produce photographs and reports in native digital format. Subsequently, Avatar petitioned for certiorari relief from the order.

The appellate court noted that it is well settled that, under the work product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable. The party who asserts that privilege, however, has the burden to show that the materials were compiled in response to some event that foreseeably could be made the basis of a claim against the insurer. A party generally cannot carry this burden with a bare assertion that a specific document is held within a claim file.

The basis for Avatar’s objection to the request at issue was work product privilege. But despite prodding from the court and after multiple opportunities to do so, Avatar never attempted to demonstrate that the photographs at issue were prepared in anticipation of litigation. Furthermore, Avatar did not attempt to establish the basis for its objection with documentary evidence, such as a supporting affidavit. Instead, Avatar asserted only a “claims file” or “underwriting file” privilege.

The court pointed out that there is no claims file privilege and said it could not conclude that the trial court’s order compelling discovery of certain photographs warranted the extraordinary relief requested.

Finally, the court rejected Avatar’s argument that any perceived deficiencies in the trial court’s order warranted certiorari relief. The petition for certiorari was denied.

Avatar Property & Casualty Insurance Company v. Simmons—District Court of Appeal of Florida, Fifth District—June 12, 2020—No. 5D20-304.

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