Anticipation of Litigation: The Role of Litigation Privilege in Subrogated Claims


When an insurer steps into the shoes of its insured and commences a subrogated action against the parties who caused an insured loss, it is often desirable for the insurer to withhold the production of certain documents that have been generated during the process of investigating the insured's claim. This may be permitted where the materials have been prepared with a view to litigation, pursuant to what is called "litigation privilege." This privilege does have its limits and exceptions though, and it's protection may even be forfeited in some circumstances. This article discusses the application of litigation privilege and how it operates in subrogated actions.

Keywords: litigation, anticipation, dominant purpose, privilege, subrogation, confidentiality, legal, lawsuit, claim, client

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