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VERMONTMark F. WerleRYAN, SMITH & CARBINE, LTD98 Merchants RowP.O. Box 310Rutland, VT 05702-0310Phone (802) 786-1000www.rsclaw.commfw@rsclaw.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)?Vermont recognizes a qualified privilege protecting from discovery documents “preparedin anticipation of litigation by or for another party’s representative, including documentsprepared by or for the other party’s insurer or agent.” Pcolar v. Casella Waste Systems,Inc., 2012 VT 58, 17, 192 Vt. 343, 59 A.3d 702. The privilege can be overcome “upona showing that the party seeking discovery has substantial need of the materials in thepreparation of the party’s case and that the party is unable without undue hardship toobtain the substantial equivalent of the materials by any other means.” Vt.R.Civ.P.26(b)(3). When work-product is ordered to be disclosed, “the judge shall protect themental impressions, conclusions, opinions, or legal theories” of an attorney or otherrepresentative of the party concerning the litigation.” Id. One trial court has held that ifthe plaintiff and defendant share the same insurance carrier, any statement made froma party to the insurance carrier prior to litigation is not privileged. See Reposa v.Landon, Dkt. No. 1102-06 CnCiv (Vt. Sup’r Ct. Dec.24, 2007 [Katz, J.]) (finding that“[p]rior to litigation, an insurance company representing both parties is viewed as a dualagent . . . of the party making the statement and also of the potentialadversary”)(internal citations omitted).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Vermont’s qualified work-product privilege extends to protect written and recordedstatements taken during investigation as material developed in anticipation of litigation,but it may be overcome upon a showing of substantial need and an inability to obtainthe substantial equivalent without undue hardship. Pcolar v. Casella Waste Systems,Inc., 2012 VT 58, 18, 192 Vt. 343, 59 A.3d 702 (the recorded interview of defendant’struck driver conducted by an adjuster for defendant’s insurance company nineteen daysafter plaintiff contacted the defendant’s CEO about the accident at issue in the litigationis protected from discovery); see Vt.R.Civ.P. 26(b)(3).