Jurisdictions should protect privileged communications that are voluntarily shared between insureds and insurers. They should recognize this protection to prevent unwanted and unintended disclosure to third parties while continuing to encourage honest communication between insurance companies and their insureds. To achieve this result, jurisdictions need to adopt an approach that views the insurance company as the insured's ally, rather than adversary, even when the insured is defending a lawsuit that the insurer might later exclude from coverage. Part II of this Comment describes how and why D&O policies differ from general liability policies, which also involve litigation concerning privileged information. Because D&O insurance contracts are unique, applying rules tailored towards general liability insurance contracts creates unreasonable results when applied to D&O liability insurance contracts. Part III describes the attorney-client privilege and work product doctrine. Part IV describes how privilege applies between an insured and insurer when the insurer has failed to confirm coverage. Specifically, this Part reviews the minority approach of encouraging honest communication between insurance companies and insureds by allowing privilege to extend to communication between the two. Part IV also discusses the majority's approach of protecting the insured from being forced to disclose information to the insurer and the outcome of applying the majority approach when third party plaintiffs request the shared information. Part V describes a middle ground between the majority and minority approaches and concludes that courts should adopt an approach that protects the insured from any forced disclosure but still encourages open communication between the insured and insurer.
Edward Lin, "Virtual" Schools: Real Discrimination, 32 SEATTLE U. L. REV. 177 (2008).