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INDIANADina M. CoxLEWIS WAGNER, LLP501 Indiana Avenue Suite 200Indianapolis, IN 46202Phone (317) 237-0500www.lewiswagner.comdcox@lewiswagner.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)?Yes, Indiana recognizes the work product privilege as a privilege from the discovery ofpre-suit investigation materials as long as those materials were assembled “inanticipation of litigation.” Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250,1254 (Ind. Ct. App. 1990) (citing Am. Bldgs. Co. v. Kokomo Grain Co., Inc., 506 N.E.2d56 (Ind. Ct. App. 1987) (internal citations omitted)). The privilege applies to materialsprepared by an attorney as well as those materials created by agents of the attorney,consultant advisors, and the client. Indiana State Bd. Of Pub. Welfare v. Tioga PinesLiving Ctr., Inc., 592 N.E.2d 1274, 1278 (Ind. Ct. App. 1992). Factors that a court mayconsider in this analysis include the following: (1) whether the party claiming theprivilege has hired an attorney; (2) consultation between the party and an attorney; and(3) other subjective factors that support the contention that the party anticipatedlitigation. See Richey v. Chappell, 572 N.E.2d 1338, 1341 (Ind. Ct. App. 1991). Thepresence of an investigation alone does not automatically mean that the investigationwas conducted in anticipation of litigation; moreover, the fact that a party has hired anattorney does not independently warrant a finding that the investigation was conductedin anticipation of litigation. See Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d1250, 1254 (Ind. Ct. App. 1990) (citing Taroli v. Gen. Elec. Co., 114 F.R.D. 97, 98 (N.D.Ind. 1987)). However, a party’s consultation with an attorney generally weighs in favorof application of the work product privilege. Id. If the materials are found not to havebeen prepared in anticipation of litigation, then they are freely discoverable, includingthe mental impressions, conclusions, and opinions of the preparer. CIGNA-INA/Aetnav. Hagerman-Shambaugh, 473 N.E.2d 1033, 1037 (Ind. Ct. App. 1985). Materialsprepared in anticipation of litigation, are discoverable only by a showing (1) ofsubstantial need for the material and (2) that the party seeking discovery is unablewithout undue hardship to obtain a substantial equivalent of the material by othermeans. Id. (citing Ind. R. Trial P. 26(B)(3)). Even if the party seeking discovery canmake such a showing, the mental impressions, conclusions, opinions, or legal theoriesof the preparer of the materials are protected from disclosure. Id. (citing Ind. R. Trial P.26(B)(3)).