Long v. Progressive Advanced Insurance Co. – The EDPA narrows the work product doctrine

The Eastern District of Pennsylvania (EDPA) rejected Progressive’s assertion that its claim evaluation documents, which included a valuation of the claim and analysis of specific elements of the claim, are protected under the work product doctrine under F.R.C.P. 26(b)(3).

In Long v. Progressive Advanced Insurance Co., Plaintiff, Long, was in a car accident and submitted the claim to her insurance company, Progressive, for UIM benefits.  After not hearing from Progressive for almost two months, Long’s lawyer sent a demand letter to Progressive, demanding it tender the policy limits to avoid litigation. When Progressive received the letter, it had not yet evaluated the claim.  Progressive provided its decision to Long three days later, but redacted large portions of its claim notes—including its analysis of specific elements of Long’s claim—arguing that such notes and analysis are work product.

In its determination, the EDPA examined the Federal Rules as it relates to work product. The Court concluded that F.R.C.P. 26(b)(3) shelters materials prepared in anticipation of litigation, butt that the party claiming work product has the burden of showing that such materials were prepared in the course of preparation for possible litigation.

The Honorable Joshua Wolson determined that while Long’s attorney’s letter did threaten litigation, the claim notes were not prepared in anticipation of litigation, but in the normal course of business as part of the insurance company’s duty to evaluate a claim.  Progressive failed to show that the evaluation differed in scope or character from an evaluation it would have conducted had it received Long’s claim, but no demand letter.  Following this reasoning, the Court held that there is “no per se rule that every document that an insurance company creates after receiving a demand letter constitutes work product.”

Ultimately, the decision calls into question what documents have to be produced and muddies the line between what is considered “prepared in anticipation of litigation,” and just in the normal course of business.

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