Insurance lawyers know that in a first pary insurance claim lawsuit, a claim for attorney fees can be made. When the insurance company challenges the attorney fees claim of the insured, a natural response by the lawyer is to seek to get the information related to what the insurance company paid their lawyers in attorney fees.
Can that be done? The question was answered by the Texas Supreme Court in this recent 2017, opinion. It is styled, In Re National Lloyds Insurance Company, Wardlaw Claims Service, Inc., And Ideal Adjusting, Inc. Relators.
The discovery dispute in this mandamus proceeding arises in the context of multi-district litigation involving allegations of underpaid homeowner insurance claims. The issue is whether a party’s attorney billing information is discoverable when the party challenges an opposing party’s attorney fee request as unreasonable or unnecessary but neither uses its own attorney fees as a comparator nor seeks to recover any portion of its own fees. This Court held that under such circumstances, (1) compelling en masse production of a party’s billing records invades the attorney work product privilege; the privilege is not waived merely because the party resisting discovery has challenged the opponent’s attorney fee request; and (3) such information is ordinarily not discoverable.