“The Access to Records Clause”
A fair amount of discussion has been devoted to the scope of discovery in reinsurance arbitrations. Specifically, challenges have been levied against the assertions of privilege made by the parties to arbitrations, with discovery motion practice becoming all too commonplace. One of the more controversial arguments being raised is that the Access to Records and Claims Cooperation clauses preclude the assertion of privilege by the ceding company. This argument is rooted in the language of such clauses, which generally provide for access to “all records.”
This article examines the current state of the law regarding the accessibility of a reinsured’s privileged documents to its reinsurer either through the Access to Records and Claims Cooperation clauses, alone, or in conjunction with the application of the “common interest”doctrine.