Editor’s Note: Seth D. Lamden is a partner at Neal, Gerber & Eisenberg LLP, a Chicago, Ill.-based law firm.
The attorney work-product privilege is one of the three primary privileges incorporated into Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5). It protects materials prepared by an attorney or others in anticipation of litigation, ostensibly shielding materials that would disclose the attorney’s theory of the case or trial strategy. President Lyndon B. Johnson originally signed FOIA into law by on July 4, 1966 and it went into effect the following year.
After their investigation was complete, the insurers denied coverage and filed a declaratory judgment action against the insured. During discovery, the insurers refused to produce the attorneys’ reports and related documents, invoking attorney-client privilege and the work-product doctrine.
Following an in camera review of the withheld documents, the court held that all documents prepared before the insurers denied coverage must be produced. The court provided several reasons in support of its ruling: