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DISTRICT OF COLUMBIAJames W. Bartlett, IIIEric M. LeppoSEMMES, BOWEN & SEMMES25 South Charles Street, Suite 1400Baltimore, Maryland 21201Phone: (410) 576-4833jbartlett@semmes.comwww.semmes.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e., involvement of counsel)?District of Columbia Superior Court Rule 26(b)(3) operates in essentially the same wayas FED.R.CIV.P. 26(b)(3)(A). A party may obtain documents prepared by the oppositionin anticipation of litigation or for trial only upon showing substantial need of the materialsand that the party cannot obtain the substantial equivalent without undue hardship.There is no reported opinion from the Superior Court or the Court of Appeals for theDistrict of Columbia applying Superior Court Rule 26(b)(3). The D.C. federal courtshave suggested that an incident report would not be protected as work product.Groover, Christie & Merritt v. LoBianco, 336 F.2d 969 (D.C.Cir. 1964) (citing Hickman v.Taylor, 329 U.S. 495 (1947)). In Fann v. Giant Food, Inc., 1987 WL 12370 (D.D.C.1987), the United States District Court for the District of Columbia cited favorably toGroover as well as Janicker v. George Washington University, 94 F.R.D. 648, 650(D.D.C. 1982), stating that an insurance investigator’s report and statements collectedwere not in anticipation of litigation simply because the investigator knew Plaintiff hasretained an attorney. As such, routine claim investigation will generally not beconsidered to be performed in anticipation of litigation, and it would generally beadvisable to retain counsel to coordinate and direct a catastrophic loss investigation.2. What is your state’s rule with regard to the discoverability of written orrecorded statement taken during investigation of an incident?A written or recorded statement from a loss investigation will fall within the work productdoctrine as long as it is deemed to have been obtained in anticipation of litigation.However, as noted above, statements taken during a “routine” investigation of apossible claim will likely not be protected. Additionally, Superior Court Rule 26(b)(3)provides that any person − whether or not a party to the case − is entitled to obtain acopy of any statement that he or she made previously without showing undue hardshipor expense. If the statement is not provided voluntarily, the person or party may seek acourt order.3. Does your state recognize a self-critical analysis privilege?