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WYOMINGJames WorthenMURANE & BOSTWICK, LLC201 North Wolcott St.Casper, WY 82601307-634-7500www.murane.comjcw@murane.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)?Other than “reports, findings, proceedings and data” presented to a medical reviewpanel organized pursuant to and acting under the provisions of W.S. §35-17-101 et.seq., and apart from the limited protections provided by Wyoming’s Rule 26 equivalentto F.R.C.P. 26(b)(3), there is no statue, rule or decision specifically providing an“exemption” or “privilege” for pre-suit investigation materials. Dependent upon the factsand the nature of a specific document, in state court there remains the possibility thatsuch reports will be protected from discovery. In the United States District Court for theDistrict of Wyoming there is a probability that such documents will be subject todiscovery.In a 34 year-old Wyoming Supreme Court decision, Thomas v. Harrison, 634 P.2d 328(Wyo. 1981), the Court held that statements and reports from the defendant physician tohis insurance carrier were prepared in anticipation of litigation and not discoverableabsent a showing of substantial need and the inability, without undue burden, to obtainthe substantial equivalent by other means. Thomas has been cited in later WyomingSupreme Court decisions, but only one of which addressed Rule 26(b)(3) provisions inthe context of this topic, and then only to raise questions as to the continuing influenceof the decision. First Wyoming Bank, N.A., Jackson Hole v. Continental Ins. Co. 860P.2d 1064, 1087-1088 (Wyo. 1993). It is also important to note that none of themembers of the court that decided Thomas v. Harrison remain on the bench.The interpretation and application of FRCP 26(b)(3) in Wyoming provide significantlyless protection to those seeking to limit discovery of accident and incident reports thanis provided by Thomas v. Harrison. If an insurer retains an adjuster or investigator, inthe absence of a letter, demand or other writing from claimant’s counsel advising that alawsuit will be filed, the chance of prevailing on a claim that adjuster/investigator reportswere prepared in anticipation of litigation will likely not prevail. If outside counsel retainsthe investigator and controls the investigation, the argument to protect the materialsbecomes more credible.