In Plaintiffs are Entitled to the Claims File in a Bad Faith Lawsuit, I explained that an insurer’s claims file is discoverable in a bad faith lawsuit. I also wrote about how reserve information can reveal bad faith claims handling in Reserves Are Important in Insurance Coverage and Bad Faith Claim Disputes. While these are two important sources of information about an insurer’s claims handling conduct, there are many less obvious sources that should not be overlooked.

While the claims file is probably filled with emails between the insurance adjuster and the insurer’s claims management, there is another type of “email” full of discoverable information that should be pursued.

…[T]he modern claims operation is highly computerized. The claims department will use a special claims computer program to create electronic claims files. This program may also allow for communications between members of the claims department.

Discovery in Insurance Bad Faith Cases, Part I, Charles Miller, Esquire, Insurance Law Center.

These emails may or may not be included as part of the electronic or physical claims file for a particular matter. For that reason, it is important to know what type of program an insurer uses and to draft discovery requests to include all emails/communications within the company regarding the claim, regardless of how they are generated.

Likewise, it is essential to know whether an insurer has a policy for email destruction. If the insurer does destroy emails, it is essential to learn the insurer’s method for destruction: how emails are selected for destruction, how they are purged, how often they are destroyed, and whether there is any way to retrieve them after they have been purged.

Information in Personnel Files
In The Big Picture in Discovery of Insurer Claims Practices, I focused on a case that provided an analysis regarding the production of personnel files for claims employees who worked on a particular claim. In that case, the insurer produced the personnel files for three different claims employees, but the personnel files lacked information pertinent to the request for production. Requests for “personnel files” might be too narrow to discover information relevant to a bad faith claim. Requests should be phrased to include the personnel file and all documents relating to an employee’s work conduct, including performance evaluations, reprimands, and awards, regardless of the type of file in which it is maintained. Discovery in Insurance Bad Faith Cases, Part II, Charles Miller, Esquire, Insurance Law Center.

Folder for Claims File
A few weeks ago, in The Fantasy of "the Good Ole Days" When Insurance Companies Adjusted Claims Fairly and Paid on Time, I addressed a few things that used to happen when adjusters handled claims files before email, blackberries, and iphones. Expanding a little bit on that, adjusters at some insurance companies don’t just write claims information in the file, they write on the claims file — the outside cover, jacket or folder of the claims file itself. Discovery in Insurance Bad Faith Cases, Part I, Charles Miller, Esquire, Insurance Law Center. The outside of the file constitutes part of the claims file, and it should not be overlooked. You might find a gem you were not expecting.

Cell Phones, Home Computers and Other Electronic Gadgets
Another source of information that attorneys might overlook is electronic equipment which is not located onsite at the insurance company. As technology expands, the distinction between home and work is often lost. People use cell phones, blackberries, personal laptops and personal desktop computers to work anywhere and at any time. In fact, it has come to my attention that one insurance company requires certain personnel and independent contractors purchase an iPhone, so that all communications, photos, and videos obtained on a claim can be immediately downloaded or transferred into a larger database with the insurance company.

Faced with a bad faith claim, insurers are not likely to provide claims information over and above what is requested. Indeed, some insurers might store information in unconventional manners just to avoid disclosure. Even though discovery should not feel like a game of hide-and-seek, it often does. To effectively advocate for a client, attorneys should presume that form requests for production will not include all relevant information and take care in drafting requests so that unconventional sources cannot be ignored.