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In many bad faith suits, discovery can mean the difference between winning and losing the case. Plaintiff's counsel must identify conduct giving rise to a bad faith claim and obtain all sources of documentation and testimony supporting that claim. Defense counsel must limit the scope of the plaintiff's discovery and effectively manage document production.
Expert witnesses may be a viable option for a plaintiff to prove bad faith claims, and defense counsel must be prepared to challenge the plaintiff's witness testimony. Both sides must be prepared to address discoverability of information needed to support or defend punitive damages claims.
Bad faith claims may include battles over whether the work-product doctrine protects certain materials. Unique attorney-client privilege issues also arise, such as the joint client exception to the privilege and implied waivers of the privilege.
Our panel will provide insurance counsel with a review of the complex rules of discovery for bad faith claims, discuss unique discovery issues that arise in bad faith claims, and offer best practices for both policyholders and insurers to obtain or defend discovery to support their respective positions.
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