It is not unusual in an Uninsured or Underinsured claim that Plaintiff Counsel will request the deposition of the adjuster and the claim file. As a rule, both requests are improper and an Objection and Motion for Protective Order should be filed.
MCR 2.302(B)(3)(a) provides, in pertinent part, that a party may obtain discovery of documents and tangible things otherwise discoverable under sub rule (B)(1) and prepared in anticipation of litigation or for Trial by or for another party or another party’s representative (including an attorney, consultant, surety, indemnator, insurer or agent) only on a showing that the parties seeking discovery has substantial need of the materials and the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
Given the fact that Plaintiff can prove his case with medical records and witness testimony readily available to him, Plaintiff cannot satisfy the burden of demonstrating undue hardship. Certainly, Plaintiff cannot demonstrate the relevance of the adjusterâ€™s thought process which, apparently, is precisely what Plaintiff counsel is attempting to discover.
In fact, the above cited Court Rule also provides:
“In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation”.
In other words, the fact that an insurance adjuster has declined to pay the amount demanded by Plaintiff counsel is not only protected under the work product doctrine, it is also irrelevant to the issues presented.
The protection afforded by MCR 2.302(B)(3)(a) was specifically extended to litigation files prepared by insurers. See Koster v June”s Trucking, Inc., et. al., 244 Mich App 162 (2001).
The reasons that an adjuster denies a claim are neither relevant nor admissible. The fact of the matter is the claim was not paid and Plaintiff now bears the burden of proving, by the greater weight of the evidence, the amount of Underinsured Motorist benefits to which he may be entitled. Plaintiff”s request for the deposition of the insurance adjuster and production of the claim file is inappropriate and Defendant therefore should request the Court issue a Protective Order.