Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the February 19, 2016 mailing of "Constructive Notice":

Work Product Presumption Rejected

Do attorney-client privilege and work product doctrine protect communications produced by an in-house counsel who performs duties as both an attorney and a claims adjuster for a title insurance company? The answer often turns on the point at which work produced by an insurer's in-house counsel acting in a dual role becomes “work prepared in anticipation of litigation.” A recent opinion from the Supreme Court of Hawai`i rejects a troubling presumption used by other courts to solve this problem. Anastasi v. Fidelity National Title Insurance Company, SCWC-30557 (Sup. Ct., Feb. 4, 2016).

In Harper v. Auto-Owners Insurance Co., 138 F.R.D. 655 (S. D. Ind 1991) the court “presumed that a document or thing prepared before a final decision was reached on an insured's claim, and which constitutes part of the factual inquiry into or evaluation of that claim, was prepared in the ordinary and routine course of the insurer's business of claim determination and is not work product.” In Anastasi, the Court pointed out that the presumption focuses “on whether material was prepared before or after a formal determination has been made on a claim,” while the relevant Hawai`i discovery rule “clearly focuses on the purpose of the prepared material and not on when it is prepared.”

The Court also emphasized that no Hawai`i statute or case imposed a Harper presumption on a fact-finder, and the language of the disclosure rule itself was inadequate for that purpose.


The Hawai`i Rule of Civil Procedure governing work product disclosure is virtually identical to the Federal Rule and that of many other states. While the Harper presumption simplifies the analysis, it can pressure an insurer into a premature claim determination when bad faith may later become an issue. Although the Anastasi approach will place greater burdens on insurers to document the process and motivations underlying the creation of certain material, it also gives them greater flexibility to properly assess the merits of each claim.