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NEW MEXICOAlfred I. GreenBUT THORNTON & BAEHR, P.C.4101 Indian School road, NESuite 300 SouthAlbuquerque, NM 87110Phone: (505) 884-0777www.btblaw.comalgreen@btblaw.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)?In general, New Mexico protects materials prepared in anticipation of litigation or for trialby a party’s insurer or insurer’s agent from discovery. Rule 1-026(B)(4). If, upon ashowing of substantial need and undue hardship on the requesting party to obtain theequivalent, the court orders production of the claims file or other insurer materials, thecourt is to protect against disclosure of the mental impressions, conclusions, or legaltheories of the party concerning the litigation. Claims files or investigation materials willonly be protected against discovery in New Mexico where they are genuinely preparedin anticipation of litigation or for trial. Materials prepared during the course of ordinaryinvestigations or in the ordinary course of business are not subject to protection asmaterials prepared in anticipation of litigation. Hartman v. Texaco Inc., 1997-NMCA-032, 123 N.M. 220, 225, 937 P.2d 979, 984. A general rule of thumb is thatinvestigations conducted by or at the direction of any attorney, including statements,have a much better chance of being protected as attorney work product or under theattorney-client privilege.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?In New Mexico, recorded witness statements, prepared in anticipation of litigation byand for a party’s attorney, whether or not a work-product, can be obtained upon ashowing of substantial need and undue hardship. Knight v. Presbyterian Hosp. Ctr.,1982-NMCA-125, 98 N.M. 523, 525, 650 P.2d 45, 47. “Good cause” is not required.Id. As noted above, one is more likely to be successful in protecting written or recordedstatements taken during investigation of an incident if it is obtained directly by legalcounsel. That being said, there have been recent discovery rulings by two judges (oneState; one Federal) where they held that failure to disclose the existence of suchstatements (as well as the existence of other documents from an adjuster’s file) on aPrivilege Log at the time discovery answers and responses were issued, resulted inwaiver of the protection and privilege.3. Does your state recognize a self-critical analysis privilege?