Waiver of Attorney-Client and Work-Product – You Can’t Be Just a Little Bit Pregnant

by Cozen O'Connor

A recent Mississippi opinion dramatically underscores the dangers of an advice-of-counsel defense.  In Willis v. Allstate Ins. Co., — F.Supp.2d —, 2014 WL 1882387 (S.D.Miss., May 12, 2014), the court held that the insurer had waived both the attorney-client privilege and the work-product doctrine with respect to coverage counsel’s entire file – and not just that portion of it that the carrier was willing to produce – when its representatives testified that they relied on the attorney’s advice to deny liability.  As the saying goes, in for a penny, in for a pound.

shutterstock_178587218The policyholder Sandra Willis’ home was damaged by a fire on June 14, 2012, and she made a claim under her homeowner’s policy with Allstate Insurance Company.  The insurer then hired an attorney, David Waldrop, to provide an opinion on coverage.  Waldrop did so in a letter dated February 19, 2013, and Allstate subsequently denied liability.  The insured responded by filing suit for breach of contract and bad faith.

During their 30(b)(6) depositions, the carrier’s  representatives testified that Allstate’s denial was based, in part, on Waldrop’s coverage opinion, and the carrier then provided the policyholder with a copy of the February 19 letter from counsel.   It withheld the balance of his file, however, and it scheduled the contents of that file on a privilege log.

The insured subsequently issued a subpoena requesting production of Waldrop’s “entire claim file of Sandra Willis, including any correspondence to and from Allstate and any reports to and from Allstate.”  Allstate moved to quash, citing the attorney-client privilege and the work-product doctrine.

The Southern District of Mississippi held that Allstate had waived both.

With respect to the privilege, Allstate conceded that it had waived that with respect to the coverage opinion itself, but it argued that its waiver did not extend to or encompass the balance of Waldrop’s file.  Judge Michael T. Parker disagreed, noting that in Mississippi “a waiver of the privilege is deemed to encompass all information related to that topic.”  According to the court’s opinion, production of the balance of the attorney’s file was necessary because “access to additional information . . . could provide important context for understanding the coverage opinion” that Allstate had already produced.  By asserting an advice-of-counsel defense, Allstate “waived the attorney-client privilege for all communications between it and . . . Waldrop regarding insurance coverage advice or opinions related to [Willis’s] claim for insurance proceeds.”

With respect to work-product, the court noted that it was Allstate that bore the burden of establishing that the documents in Waldrop’s file were prepared in anticipation of litigation as opposed to “a more or less routine investigation of a possible resistible claim.”  As the judge explained, the “key question” here was when Allstate shifted from merely investigating the claim to anticipating a lawsuit over it.  Judge Parker held that Allstate had not met its burden because it hadn’t “pinpointed a definite shift from acting in its ordinary course of business to acting in anticipation of litigation.”  The judge also stated that the work-product doctrine – like the attorney-client privilege – could be waived, and he held that Allstate had done so by “put[ting] in issue [the] attorney’s opinion or work product.”

The court held that the insured was “entitled to all written communications (or notes describing such) between Allstate and . . . Waldrop regarding [her] claim for benefits under the Allstate policy at issue” as well as “all documents provided by Allstate (or any other person) to . . . Waldrop that were reviewed or considered in reaching his opinion.”


Written by:

Cozen O'Connor

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.