To a personal injury attorney, few things are more disheartening than finding out that the prospective client sitting in the conference room already gave a recorded statement to the adverse insurance carrier before the client ever sought counsel. “They told me it was a required part of their investigation,” is the usual response from the client. So, the attorney crosses fingers and hopes that the new client did not give any poorly worded responses that will harm the case on either liability or damages.
But the opposing driver is in the same posture. In the days right after the collision the adverse insurer likely took a statement from their own driver, before that driver had legal counsel and before they may have fully understood the issues at play. These statements aid in the decision as to whether the carrier owes a claim or not. To plaintiff’s counsel, there may be a treasure trove of useful answers in the defendant’s early recorded statement, i.e., numerous “I don’t know” responses or “I never saw him. He came out of nowhere.” Once a case is in suit, however, almost all of the accounts given by the defendant get sanitized through defense counsel and may vary significantly from the defendant’s original statement. So, a contemporaneous statement is worth pursuing in subsequent litigation.
In pre-trial discovery, a plaintiff may freely obtain from the defendant a copy of the plaintiff’s statement under Md. R. Civ. P. (“MRCP”) 2-402(f).i But obtaining a copy of the statement given by the defendant to their own insurer tends to trigger a knee-jerk refusal by the defense, leading to an eventual motion battle between the parties.
Obviously, obtaining a defendant’s recorded statement begins with verifying that one exists. This is typically done through a specific interrogatory asking the defendant to simply identify all written or recorded statements related to the subject collision, including the date each was created, the persons involved, the purpose of the statement and present custodian. Since this interrogatory does not ask that the statement be produced, it is improper for the defendant to respond with an objection and refusal to answer under a claim of privilege. Plaintiff’s counsel should not accept a blanket objection that does not provide the requested details. Similarly, a slick “non-answer” from defense counsel, such as “Defendant is not aware of any non-privileged statements,” is an inadequate response which does not reveal whether a statement even exists.ii In the face of an objection or evasive answer, immediately follow up with a letter asking for prompt supplementation of that answer from defense counsel to supply all items of information requested. In district court, trial dates are on you quickly. It is thus wise to turn around a “good faith” letter the day you get the defendant’s Answers to Interrogatories, insisting that the details of any statement be promptly provided so that if a motion to compel is required, it can be done well prior to trial.
Assuming that a statement of the defendant does exist, the procedure for obtaining a copy varies depending on whether the case is in district court or circuit court. Document discovery in district court is limited under MRCP 3-421(a)(3) to documents upon which a claim or defense is founded, the party’s own statement, and expert reports. As the defendant’s statement does not fall into one of these categories,iii and cannot be obtained via interrogatories, the best method for obtaining it is to serve a trial subpoena on the custodian of records at the insurance company directing them to appear at trial with the statement. Plaintiff’s counsel should then expect a motion to quash or motion for protective order raising the privilege claim.
In circuit court, where document discovery is far more extensive, plaintiff’s counsel should include a specific request within the request for production of documents for “any and all written or recorded statements related to the subject collision.” This specific request is likely to be met with a privilege objection by the defense. After a good faith letter is sent, counsel can certainly file a motion to compel at that time. The alternative is to first take a deposition where the defendant can be asked to give details about the creation of the statement. This testimony may help support a motion to compel after the deposition. Useful questions include –
“When you gave the statement did the person on the other end indicate they were an attorney or acting at the request of an attorney?”
“Did the caller advise that they needed your statement to understand how to best resolve the claim?”
“Did they indicate that collecting your statement was routine or that there was something special about your case?”
“Can I assume that like most folks, your memory of details was fresher two years ago when you gave the statement than it is today?”
Plaintiff’s counsel should also ask whether the defendant reviewed the earlier statement in preparation for the deposition.
Whether the case is in district court or circuit court, and whether the fight is over a motion to quash the trial subpoena or a motion to compel, the defense position is invariably that it does not have to turn over the defendant’s statement because it is covered by work product and/or attorney-client privilege. In the majority of cases, this is baseless. The court must review relevant facts to determine whether the statement was protected attorney-client communication, or whether it was taken in anticipation of litigation vs. taken as part of the carrier’s normal business practice. If the latter, there is no work product privilege.
First, there is no recognized “insurance adjuster-policyholder” privilege in Maryland that gives blanket protection to communications made between a claim representative and an insured. Since defense counsel typically does not get involved in a case at the early stage of a claim, it would be extremely rare for an early recorded statement to constitute attorney-client communications.iv
As to any claim that the defendant’s statement is privileged work product, MRCP 2-402(d) expressly sets out that work product is considered to be those materials prepared “in anticipation of litigation.” Since the basic business of an insurance carrier is investigating and paying/rejecting claims, taking an early statement is typically a routine business function and not done in anticipation of any litigation.v
The timing and primary purpose of the statement are key factors in the Court’s proper assessment of the asserted privilege. If the carrier took the statement the day of or shortly after the collision, it was hardly already anticipating litigation. If the carrier took a statement before determining liability, it was likely not anticipating litigation. After all, the carrier might have taken the defendant’s statement, realized there was no viable liability defense and eventually paid the claim without any ensuing litigation at all. And just because the carrier received a letter of representation from an injured party’s attorney, that also does not automatically mean that the statement of an insured was created in anticipation of litigation.
As to the primary purpose of the recorded statement, while it seems evident that the carriers take these statements in aid of daily claims evaluation,vi once in litigation, the defense will try to re-characterize the process to support a work product claim. And they usually wage this fight without facts, just assertions, which is improper. In fighting back, the plaintiffs’ bar should note that many insurance carriers post information on their own websites about what to expect during the normal claims process. More than one carrier doing business in Maryland has publicly admitted that the regular claims process involves taking statements from drivers and witnesses as they investigate a claim,vii further highlighting that this is a routine business function having nothing to do with impending litigation. Screenshot these web articles to provide to the court to help resolve a dispute in your client’s favor.
Another important point in the fight over whether a statement is taken in the ordinary course is the now routine practice of carriers recording all calls that come into the carrier’s claims center. The telephone warning: “This call may be recorded for quality or training purposes” is now ubiquitous. What that means is that there may be a recording of the defendant (or the plaintiff) even where they did not expressly agree to give a recorded statement. In the initial letter of representation to the carrier, plaintiff’s counsel should demand that any calls pertaining to the collision that were recorded for “quality or training purposes” be preserved until the end of the claim at the risk of a spoliation instruction if not maintained. Later in discovery, when asking about the existence of statements, plaintiff’s counsel should remind the defense to make a specific search for statements that may have been captured by this auto-record system. Without a reminder to the defense to ensure that the carrier has actually searched the auto-record system, defense counsel is likely to simply respond in discovery that “there are no statements,” because none came over with the file when it was first assigned to counsel. Any statement captured by an auto-record system at the insurance carrier is absolutely created in the ordinary course, because the recording system runs all day long, of every caller, no matter the timing of or reason for the call, for the express business purpose of improving service quality or training employees. The carrier will have no bona fide argument these are taken in anticipation of litigation.
Because a certain percentage of injury claims do end up in litigation, the most common argument raised by the defense is simply that the claim representative was naturally “anticipating litigation” when the statement was first taken. This is a misstatement of the legal standard and would inevitably create a blanket privilege the moment a claim rep first speaks to their insured. But as made clear in du Pont, materials do not become protected work product simply because litigation remains a possibility or might one day ensue. The “mere fact that a party finds itself in circumstances that may lead to litigation, however, does not render all documents prepared with regard to those circumstances protected work product.”viii
In plain language, du Pont reiterates that the work product privilege “protects from discovery the work of an attorney done in anticipation of litigation or in readiness for trial.”ix Because attorneys are rarely involved in taking recorded statements in the days following a collision, the defense will routinely seek to expand the privilege so as to cover a statement taken by a non-attorney claim representative. To this end, the defense will often quote the language from MRCP 2-402(d) that defines “party’s representative” to include “attorney, consultant, surety, indemnitor, insurer or agent.” The defense argument then follows - “Your honor, materials obtained by ‘insurers’ are expressly recognized in the rule on work product and we do not have to surrender the recorded statement.” Not so fast. While the rule does mention materials prepared not only by an attorney, but by an “insurer” as well, MRCP 2-402(d) should not be read as creating a blanket work product privilege as to all tasks undertaken by an insurer. It simply means that if the materials were actually prepared in anticipation of litigation, even if by an insurer, the privilege may vest. Thus, if an assigned defense attorney asked a claims representative to obtain the statement of a witness prior to trial, the privilege would then arguably apply.
To bolster a claim of privilege, some defense firms respond by attaching to an opposition a summary affidavit by the claims representative stating something like, “the statement was taken in anticipation of litigation and to aid the anticipated defense of this matter,” or other similar assertions. The claim rep’s self-serving/conclusory averment should be challenged as a mere legal conclusion. The determination of whether the document was created in anticipation of litigation is for the court, not the claim rep. If the court is to properly rule on the claimed privilege, the court must look past the conclusory assertion in the affidavit and weigh facts pertaining to the setting, timing, purpose, general company procedures, and attorney involvement underlying the disputed statement. In most cases, the claim representative’s summary affidavit does not provide those facts.1x Do not hesitate to request an evidentiary hearing to resolve the dispute, where the claim rep must appear and give testimony on the manner in which the disputed statement was created. If the affidavit cites company procedures, demand that the actual procedure manuals alluded to be brought to the hearing. If the court is waffling on the privilege issue, suggest that the court perform an in-camera review of the statement to verify whether there were any indicia that it was prepared in anticipation of imminent litigation.
In district court the defense often argues that a trial subpoena to the claim rep is an attempt to obtain documents that fall “outside of document discovery” from a non-party to the litigation. That may be true, but it is perfectly permissible. Obviously, non-parties do not answer interrogatories, so those would not be the proper vehicle to obtain a document from the carrier. And if the parties were limited to only those materials obtainable from their opponent via interrogatories, district court subpoenas would be meaningless. Remind the court that the defense routinely issues district court trial subpoenas to plaintiffs’ physicians to get access to pre-accident medical records not available via interrogatory. This is an entirely proper method of securing the statement from a non-party custodian.
The defense will often cite to Kelch v. Mass Transit Authority1xi for the proposition that an early statement by a driver is privileged. The holding of that case is not nearly as far reaching as the defense would urge. In Kelch, the disputed statement was given by a bus driver to his employer, the MTA, after a traffic collision. While the court ultimately held that the statement was protected from disclosure, the obvious distinction when pushing back on Kelch is that the MTA is not an insurer in the daily business of adjusting and paying claims, it is a common carrier whose primary business is transporting customers. Thus, investigating accidents was not a routine function. Additionally, in Kelch, a suit was filed just three weeks after the subject collision,1xii supporting the conclusion that investigative steps were indeed taken in anticipation of litigation.
In opposing a motion to obtain the recorded statement, the defense routinely argues that plaintiff is seeking privileged materials but has not made the requisite showing of “substantial need” and “undue hardship” under MRCP 2-402(d) in order to obtain the statement. In response, it is imperative to point out that the defendant is attempting to improperly skip over the predicate inquiry - “Is this material genuinely protected by privilege?” The defendant cannot merely allege a privilege and then require plaintiff to overcome it with a “substantial need” showing. Rather, the party claiming privilege in the first place “bears the burden of establishing its existence and applicability.”1xiii Only after the defendant has made a persuasive showing that the withheld material is indeed privileged should the Court then require a substantial need/undue hardship showing from the plaintiff.
Even if a recorded statement is deemed work product, the court should still entertain a showing by the plaintiff of “substantial need” for the document under MRCP 2-402(d). One of the recurring arguments by the defense in circuit court is that the plaintiff does not need the original recorded statement, as they have the ready option of obtaining the “equivalent” thereof by taking the defendant’s deposition. In this regard, many courts across the country have long recognized that a deposition of the defendant during litigation is not the equivalent of a statement taken immediately after the collision. This is why the deposition of a defendant, peppered throughout with “I don’t know” responses can be helpful in a Motion to Compel a Recorded Statement, providing clear evidence that the defendant’s present recollection is inferior to the original statement. Note that there is not likely to be attorney thoughts, opinion, or trial strategy in the statement if no attorney was involved in its creation. Lastly, point out for the court the paradox in the defense position - If the defendant’s deposition testimony is the same as, i.e. the “equivalent” of, the original statement from two years earlier, then why is the defense fighting so hard to shield the statement from disclosure?
When preparing any motion to obtain the defendant’s recorded statement, it will help if counsel includes the actual name of the insurance carrier in the wording of the proposed order. Thus, the language in the order should read, “It is hereby Ordered that the defendant shall produce, within the next 7 days, a copy of the recorded statement taken by his/her insurer [State Farm, GEICO, Allstate, Liberty Mutual, etc.] This practice strengthens counsel’s position in future cases, as the motions judge can be given copies of prior orders showing specifically that the involved insurance carrier has repeatedly lost the privilege argument in other cases.
Claims representatives almost always prefer to not be dragged into court via subpoena. If the defense loses the privilege battle in district court, defense counsel will routinely call and indicate that they will send over a copy of the disputed statement if the claim representative is excused from attending trial. Before agreeing to this resolution, press defense counsel to first agree that the statement is an accurate transcription of the recorded statement and that it is admissible at trial by plaintiff, if necessary, without a sponsoring witness.
There will be instances where a disputed statement is finally produced after a motions battle and it’s not particularly helpful to plaintiff’s counsel. But these are exceptions. More often than not, a statement eventually turned over after the defendant has been deposed or given signed answers to interrogatories will show the defendant has changed his/her story in significant ways during litigation from their original account. This can add immense pressure on the defense to drop liability arguments, or even settle the case. So, fighting to obtain the defendant’s statement is typically time well spent.
Howard Simcox, Jr. is a principal at Sussman & Simcox, a personal injury firm serving clients across Maryland and Washington, D.C. He has tried approximately 130 jury trials and numerous district court trials in his career and argued 14 cases in Maryland’s appellate courts. In addition to an active personal injury practice, Mr. Simcox is frequently called upon to serve as arbitrator in personal injury disputes and has served as a panelist speaker in MAJ presentations.
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