No. 31392, West Virginia Supreme Court of Appeals (filed Jan. 7, 2004).

The underlying litigation in this case involves claims of insurance bad faith on the part of Allstate. The defendant resisted discovery of various documents, and sought a writ of prohibition, asserting attorney-client privilege. The lower court agreed with plaintiff that the privilege is inapplicable because the communications were in furtherance of an ongoing fraud by defendant. The WV high court agreed to take the case to address the issue of the appropriate standard for establishing fraud during discovery so as to remove the protection of the attorney-client privilege. CCL's Senior Litigation Counsel Ned Miltenberg co-authored the AAJ and the West Virginia Trial Lawyers brief, which urged the court to adopt the “elements” test of the prima facie standard.

AAJ's Amicus Curiae Brief: State ex rel Allstate Insurance Co. v. Madden