Mandamus - Discovery - Attorney-Client Privilege - Work-Product Doctrine


Ex parte Dow Corning Alabama, Inc., [Ms. 1171118, Nov. 27, 2019] __ So. 3d __ (Ala. 2019). In this plurality opinion (Sellers, J.; and Parker, C.J., Bolin and Stewart, JJ., concur; Shaw and Bryan, JJ., concur in the result; Wise, Mendheim, and Mitchell, JJ., recused themselves), the Court grants a petition for a writ of mandamus directing the Houston Circuit Court to vacate its order in a declaratory judgment action requiring disclosures by petitioners of information protected by the attorney-client privilege and the work-product doctrine and to grant petitioner's motion for a protective order as to those documents. The plurality holds that in a declaratory judgment action challenging an indemnitor's decision not to provide indemnity in an underlying industrial accident personal injury case, the indemnitees – who incurred defense costs and paid money to settle the underlying personal injury claim – while obliged to prove that the settlement was a "good faith reasonable settlement," are nevertheless not entitled to discover evidence of reports, evaluations, or recommendations from defense counsel to the indemnitors regarding any analyses or recommendations of liability, injury, or damages in the underlying case. The plurality rejects the contention that by seeking indemnity and putting the reasonableness and good faith of the settlement in issue, the indemnitors did not waive the attorney-client privilege or the protections reported by the work-product doctrine. Instead, citing cases from other jurisdictions, the Court concludes the reasonableness and good faith of the settlement in the context of an indemnity claim is to be judged using an objective standard which can be proven with non-privileged documents and testimony.

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