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Lazar v. Riggs11/10/2003
gation. This court stated that " he general standard to be applied is whether, in light of the nature of the document and the factual situation in the particular case, the party resisting discovery demonstrates that the document was prepared or obtained in contemplation of specific litigation." Hawkins, 638 P.2d at 1379; see also Farmers, 718 P.2d at 1047-1048. This court went on to say that
ecause a substantial part of an insurance company's business is to investigate claims made by an insured against the company or by some other party against the insured, it must be presumed that such investigations are part of the normal business activity of the company and that reports and witness' statements compiled by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials.
Id. at 1378. However, Hawkins also clarified that "under appropriate circumstances," an insurance company's investigation of a claim may shift from an ordinary business activity to conduct in anticipation of litigation. Id. For several reasons, I think that the appropriate circumstances alluded to in Hawkins exist in this case and support the trial court's determination that the materials containing Riggs' statements were prepared in anticipation of litigation.
Applying the standard in Hawkins requires a court to analyze both the "nature of the document" and the "factual situation in the particular case" to determine whether the materials were prepared in "contemplation of specific litigation." In Hawkins, both the nature of the document sought to be discovered and the factual situation surrounding the discovery request were markedly different from the facts of this case. First, the document in Hawkins comprised statements of a non-party witness as opposed to the insured's own statements. Second, the factual situation in Hawkins involved an investigation by the insurance company that was initiated to adjust the insured's own loss by a fire, with no litigation contemplated. In contrast, the factual situation in this case involves an investigation by a liability insurer relating to a prospective third-party personal injury claim. Hence, I do not view Hawkins as controlling.
Three years later, in Kay Labs., Inc. v. Dist. Court, 653 P.2d 721 (1982), this court rejected the argument that materials prepared in the investigation of third-party claims deserve greater protection from discovery than materials prepared during the investigation of first-party claims. We observed that the party contesting discovery in that case offered "no rationale for holding that the former [third-party claims] should be entitled to greater protection from discovery under C.R.C.P. 26 than the latter [first-party claims], and we do not discern one." Id. at 723. We repeated the language from Hawkins relative to the burden of the party opposing discovery to demonstrate that the document was prepared to defend against a specific claim, and concluded that the hospital had not met that burden. Id. at 722. However, again, the nature of the document and the particular factual situation in Kay are markedly different from the case at bar.
In Kay, a patient sued a hospital and a product manufacturer seeking damages she alleged occurred when a chemical ice pack administered by the hospital leaked. The document at issue was a pre-printed form filled out by a nurse in triplicate within 6 to 8 hours of the time of the incident. Such forms were routinely filled out by hospital personnel when any incident occurred which "could possibly result in litigation against the hospital." Id. This incident report, like incident reports generally, was prepared in
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