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OKLAHOMAAlexander J. SisemoreFRANDEN | FARRIS | QUILLINGOODNIGHT + ROBERTSWilliams Center Tower IITwo West 2 nd Street, Suite 900Tulsa, Oklahoma 74103-4514Phone: (918) 583-7129www.tulsalawyer.comasisemore@tulsalawyer.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)?Pre-suit investigative materials, including an insurance company’s claim file, are notautomatically protected from discovery. See Scott v. Peterson, 2005 OK 84, 126 P.3d1232. However, a party may not discover documents and tangible things prepared inanticipation of litigation or for trial by or for another party or its representative, includingthe other party’s attorney, consultant, surety, indemnitor, insurer or agent except (i) ifthey are otherwise discoverable (i.e., relevant and not privileged) and (ii) the partyshows that it has substantial need for the materials to prepare its case and cannot,without undue hardship, obtain their substantial equivalent by other means. 12 O.S. §3226(B)(3)(a). Documents prepared in the ordinary course of business are not deemedgenerated in anticipation of litigation merely because litigation was a contingency. Hallv. Goodwin, 1989 OK 88, 775 P.2d 291. The key to preserving the privilege is ensuringthe primary motivating purpose behind creation of the document be in aid of possiblefuture litigation, though litigation need not be imminent at the time of the document'screation. Hall v. Goodwin, 1989 OK 88, 775 P.2d 291. Because deference is affordedto attorney work-product, involvement of counsel is recommended.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?A party or witness is entitled to production of his or her own written or recordedstatements. 12 O.S. § 3226(B)(3)(c). Oklahoma case law has distinguished betweenthe discoverability of statements taken during an investigation of an incident dependingon whether the statements were taken by an attorney or layperson. See Cowen v.Hughes, 1973 OK 11, 509 P.2d 461; Carman v. Fishel, 1966 OK 130, 418 P.2d 963(overruled on other grounds). Unless a party can show that statements taken by nonattorneysin an investigation are taken in anticipation of litigation, they will likely not bedeemed to fall under the work-product doctrine and will be discoverable. Even if thework-product doctrine applies, the statements may be discoverable upon a propershowing under 12 O.S. § 3226(B)(3)(a).