Reservation of Rights Created Expectation of Litigation Supporting Work Product Claim
On January 25, 2008, a Southern District of Ohio magistrate found that a reservation of rights letter established an expectation of litigation that supported a work product claim. St. Paul Fire and Marine Insurance Co. v. ConAgra Foods, Inc., 2008 U.S. Dist. LEXIS 8945 (S.D. Ohio Jan. 25, 2008). This decision will be welcomed by Insurers seeking work product protection. But, insurers should also expect that this shield will be the policyholders' sword. Policyholders will surely be arguing that reservation of rights letters trigger an expectation of litigation that requires a litigation hold. The developments in this area will be interesting to watch.
