In cases where people are making personal injury claims against an insurance company you represent, it is important to manage expectations by giving reasoned, realistic and rational guidance to your client in both seeking and responding to discovery. It’s very common for insurance companies to assume two key things: That their confidential communications about claims and policies (and policy holders) are private and protected, and that email is included in this category.
However, what many companies providing personal injury insurance coverage in California need to understand is that this may not actually be the case. The law is very unsettled on the question of the confidentiality of email communications in the context of personal injury claim lawsuits against insurance companies, but you should advise your clients that they should assume it is possible their confidential emails will be judged discoverable.
California does not yet have a clear precedent, but other states have ruled that confidential emails are, in fact, subject to e-discovery. These emails can include frank discussions of claims that can be very injurious to the insurer’s case and reputation, even if no laws are broken.
Clients should be advised as early as possible to be ready to not only provide emails when ordered to do so, but to take steps necessary to preserve all relevant email in the event they might be requested.
Looking into the future, insurers will need to establish clear guidelines for confidential email communications that assume someday they will be entered into a public record due to aggressive e-discovery, at least until California establishes a different precedent that explicitly excludes such communications or protects them from e-discovery efforts.