It's Privileged: Should Litigation Privilege Attach To Pre-Litigation Adjusters' Files?

Litigation privilege serves to protect from disclosure, documents that come into existence (a) after litigation has been commenced, or (b) when litigation was reasonably contemplated if it was for the dominant purpose of using the information to obtain legal advice, or to assist in the conduct of the contemplated litigation.  The purpose of the privilege is "to create a 'zone of privacy' in relation to pending or apprehended litigation", so that litigants can prepare their respective cases in private, without adversarial interference and the risk of premature disclosure.¹

In the context of an insurance claim, claimants will often seek production of adjusters' reports and other material that were created during the course of a pre-litigation investigation.  Conversely, insurers will often challenge such production, claiming litigation privilege.