BROOKLYN UNION GAS COMPANY v. Certain Underwriters of Lloyd's, London, et al., Defendants-Appellants. (2005)

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 31, 2005, granting renewal of a prior disclosure order (same court and Justice), entered September 23, 2004, which, to the extent appealed from as limited by the briefs, adhered to that prior order, unanimously affirmed, with costs.

 The court is vested with broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an improvident exercise of that discretion (see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 A.D.3d 223, 767 N.Y.S.2d 228 [2003] ).   Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company's business (see Roman Catholic Church of the Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 608 N.Y.S.2d 647 [1994];  Karta Indus. v. Insurance Co. of State of Pa., 258 A.D.2d 375, 685 N.Y.S.2d 685 [1999] ).   Furthermore, attorney work product applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy (see ACWOO Intl. Steel Corp. v. Frenkel & Co., 165 A.D.2d 752, 564 N.Y.S.2d 40 [1990], citing Hoffman v. Ro-San Manor, 73 A.D.2d 207, 425 N.Y.S.2d 619 [1980] ).   Documents prepared in the ordinary course of an insurance company's investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant's loss are not privileged, and, therefore, discoverable.   In addition, such documents do not become privileged “merely because an investigation was conducted by an attorney” (Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 379, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991];  accord Bertalo's Rest. v. Exchange Ins. Co., 240 A.D.2d 452, 455, 658 N.Y.S.2d 656 [1997], lv. dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492 [1997] ).   Moreover, in order for attorney-client communications to be privileged, the document must be primarily or predominantly a communication of a legal character (Spectrum Sys. Intl. Corp., 78 N.Y.2d at 378, 575 N.Y.S.2d 809, 581 N.E.2d 1055, citing Rossi v. Blue Cross & Blue Shield, 73 N.Y.2d 588, 594, 542 N.Y.S.2d 508, 540 N.E.2d 703 [1989] ).

The burden of establishing any right to protection is on the party asserting it, and the protection claimed must be narrowly construed (Spectrum Sys. Intl. Corp., 78 N.Y.2d at 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055).   Here, appellants have failed to satisfy their burden with a detailed explanation sufficient to establish why the information sought is privileged.   Rather, a review of the documents in question reveals that appellants' attorneys were acting as claims investigators, not attorneys, and were investigating the issue of whether coverage should be provided and the costs of such coverage.   Contrary to appellants' conclusory assertions, there is no legal advice, no legal recommendations or attorney thought processes revealed in these documents, nor do they appear to have been “solely” prepared for settlement purposes, as appellants assert, inasmuch as no litigation had been commenced.   Nor can appellants rely on their anticipation of litigation, since they had not yet made a coverage decision.   Thus, these documents were prepared in the ordinary course of the insurance companies' business of evaluating claims, and the fact that the investigation was performed by attorneys will not shield them from discovery.