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By Stephen Taylor
In San Joaquin County, several insurance fraud prosecutions have gone to preliminary hearings and one to jury trial. In each case that the insurance company attorneys and investigators have testified, they have been cross-examined by use of their own internal memos to each other. In these memos, they criticized their own case and witnesses, and otherwise speculated on the merits and defenses of their case.
Usually when this occurs, the prosecuting attorney appears panicked and demands to know where the public defender got the memo that is being used to embarrass the attorney or witness. The public defender invariably responds that he is asking the questions here, not the witness on the stand. The attorney or witness then turns to the judge and asks him to make it stop. The judge usually responds by telling the witness to answer the questions and that any attorney-client privilege surrounding the use of the memo by the criminal defense attorney was waived when the memo was distributed by the insurance company or the
insurance attorney’s office.
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MORAL OF THE STORY:
ANYTHING AND EVERYTHING GIVEN TO THE DISTRICT ATTORNEY WILL BE COPIED AND GIVEN TO THE CRIMINAL DEFENSE ATTORNEY.
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Documents that are otherwise privileged cannot be given to the district attorney with the instruction to “not show it to the other side.” It does not work that way. The district attorney does not issue individual warnings about this, or even always read everything that is sent over; there are instances when a case has over 300 pages of documents. When a criminal case is filed, EVERYTHING goes out to the other side. It’s the law.
It is the responsibility of the insurance company to have and maintain an internal policy to identify, segregate and protect privileged documents and to assert the privilege within the legal deadlines, etc. The district attorney will do nothing to protect the company in this regard. It simply cannot be done. So, do not include any privileged documents in the files that are submitted to the district attorney’s office. Also, privileged documents should not arbitrarily be released to someone who has served you with a subpoena – because once they have been released, the privileges are waived – usually forever. Once these documents have been handed out to anyone, they can and will be used against the company by the other side in every proceeding, both criminal and civil.
WARNING! Most companies seem to mix attorney correspondence with claims documents. Then, when the claimant subpoenas the claims file, all the attorney correspondence is released along with the file. Further, it also appears that private investigator’s reports may be ordered and delivered to the insurance company which MAY NOT BE PRIVILEGED – rather than through the insurance company lawyers WHICH CAN GIVE A PRIVILEGE. This can prove disastrous in court. Insurers must get their company policy together and protect themselves.
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