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In order to have a meritorious personal injury claim, the first thing a plaintiff will have to prove is that the another party is liable for their injuries. In motor vehicle collisions, a party that does not follow the rules of the road is usually liable for causing the collision and the subsequent injuries. All drivers are expected to know the rules of the road, but, unfortunately, drivers involved in a motor vehicle collision frequently disagree about what happened. 

Once a motor vehicle crash is reported to an insurance company, the insurance company will ask their insured to give a recorded statement on what happened. This is standard procedure of insurance companies. In premises cases, such as trip and falls, the insurance company will also ask the involved parties for a recorded statement. In situations where liability is disputed, personal injury cases usually cannot be resolved without litigation. As part of discovery, the plaintiff’s attorneys will normally request the defendant’s recorded statement given to their insurance company.

In most cases, defense attorneys object to providing recorded statements made to insurance companies claiming such statements are “privileged” under the work product doctrine and therefore not discoverable.  

What is the Work Product Doctrine?

The work product doctrine allows a party to claim that any documents or tangible things prepared in anticipation of litigation or for trial by either the party or the party’s representative are privileged. The only exception is if the party seeking those privileged materials can show that they have a substantial need for the requested material and that they are unable without undue hardship to obtain the substantial equivalent of the materials by other means. (Va. Sup. Ct. R. 4.1(b)(3))

In determining whether a requested recorded statement is discoverable, the first question is whether the statement was obtained in the ordinary course of business or if the statement was made in anticipation of litigation. There are two tests that the Courts have used when determining whether the recorded statement is afforded work product privilege, and, unfortunately, Virginia’s Circuit Courts are split on which test to use.

Bright-Line Rule

The first test is a bright-line rule called the Thomas Organ rule. This bright-line rule comes from the Fourth Circuit and states that any report or statement that was not requested by or prepared by an attorney is considered to have been made in the ordinary course of business.

When this bright-line rule is applied, the recorded statements will usually be discoverable because insurance companies normally take these statements before counsel is assigned or hired. 

Case-by-Case Test

The second test is a case-by-case test. When courts use the case-by-case test, they ask whether “a reasonable person in the shoes of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced,” Piland v. White, 85 Va. Cir. 45, 47-48. In this case, the Judge reviews several factors to determine whether litigation was expected or reasonably expected. These factors include the severity of injuries sustained, would negligence lie with either party, would the victim of an accident pursue a claim, and did the victim lack the resources to pay for medical expenses. Additionally, factors include whether liability could be established, was the agent taking statements as part of non-litigation purposes, was the insurer investigating a claim in the same manner all other claims were investigated, and, finally, were the documents produced before the insurer formally denied the claim.

When the case-by-case test is applied, the discoverability of the recorded statements will depend on the specific facts of the subject case. 

The Virginia Supreme Court has not addressed the issue of discoverability of these recorded statements. Without direct authority from the highest Court, the discoverability of these statements will depend on the Court, the Judge, and the specific facts of the case. At Curcio Law, we are committed to helping our clients throughout the process following a car accident. It is important to consult experienced personal injury attorneys, like us at Curcio Law, to compel the production of these recorded statements. Call or text us at 703-836-3366, contact us online or email rhamad@curciolaw.com.

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