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38 Journal of American Law // Spring 2015 Te decision in Cedell has grabbed the spotlight recently based on its broad holding that the attorney-client privilege does not apply to claims fles. However, long before Cedell, other jurisdictions already had held that claims fles are sub- ject to disclosure in the context of a bad faith claim. For ex- ample, in Boone v. Vanliner Ins. Co., 43 the Supreme Court of Ohio held that "claims fle materials that show an insurer's lack of good faith in denying coverage are unworthy of pro- tection." Additionally, the documents that are discoverable are not just those that related to the existence of coverage. Te Supreme Court of Ohio "has indicated that the critical issue in evaluating the discoverability of otherwise privileged materials is not whether the attorney-client communications related to the existence of coverage but, rather, whether they may cast light on bad faith on the part of the insurer." 44 Al- though the Supreme Court of Ohio does not explicitly state that there is a presumption that the attorney-client privilege does not apply to claims fles in bad faith cases, its holding has the same efect. Te holding in Boone to allow disclosure of claims fles in bad faith actions over claims of attorney-client privilege was preceded by other similar decisions in the Unit- ed States District Court for the Northern District of Illinois, 45 the United States District Court for the District of Montana, 46 and the Supreme Court of Arizona. 47 However, unlike the court in Cedell, 48 the Supreme Court 43 Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 212(2001). 44 Garg v. State Auto. Mut. Ins. Co., 155 Ohio App. 3d 258, 265 (Ohio Ct. App. 2003). 45 Transport Ins. Co. v. Post Express Co., No. 91 C 5750, 1996 U.S. Dist. LEXIS 688 (N.D. Ill. January 22, 1996). 46 Silva v. Fire Ins. Exchange, 112 F.R.D. 699(D. Mont. 1986). 47 Brown v. Superior Court, 137 Ariz. 327(Ariz. 1983). 48 In Cedell, the Washington Supreme Court states: Implicit in an insurance company's handling of a claim is litigation or the threat of litigation that involves the advice of counsel. To permit a blanket privilege in insurance bad faith claims because of the participation of lawyers hired or employed by insurers would unreasonably obstruct discovery of meritorious claims and conceal unwarranted practices. 176 Wn.2d at 696-697. Later in the opinion, the Supreme Court again addresses the question of discovery of privileged materials: Te attorney-client privilege exists in order to allow the client to communicate freely with an attorney without fear of compul- sory discovery. Although this purpose is served by protecting communications regarding prior wrongful conduct, the privilege should not encourage the perpetration of such conduct. Engaging an attorney in order to further the bad faith denial of insurance coverage represents an abuse of the attorney-client privilege. We should hold, therefore, that communications related to an attorney's aiding an ongoing or future commission of bad faith by an insurer are discoverable if an in camera inspection reveals a foundation in fact of such wrongful conduct, provided that the party seeking disclosure frst makes a factual showing adequate to support a good faith belief by a reasonable person that such conduct has occurred. Tus, it is clear that the Washington Supreme Court has lef of Ohio in Boone clarifes that the protections aforded by the attorney-client privilege still apply afer the denial of cover- age. 49 Te Supreme Court of Ohio reasoned that "a lack of good faith in determining coverage involves conduct that oc- curs when assessment of coverage is being considered. Tere- fore, the only attorney-client and work product documents that would contain information related to the bad faith claim, and, thus, be unworthy of protection, would have been created prior to the denial of coverage." 50 Conclusion Nationally, the scope of the protections aforded by the attor- ney-client privilege appears to be narrowing, but there still is a consensus that coverage opinions that solely provide legal advice as to whether coverage exists remain immune from disclosure. Te interest of insurers in protecting the disclo- sure of legal advice by coverage counsel would be best served by assigning the discrete tasks of claims investigation and adjustment to various parties, e.g, retaining an investigator to conduct witness interviews and other investigations. If coverage counsel's sole task is to render a legal opinion as to whether there is coverage under the policy, an insurer will be in a better position to argue that counsel's predenial opinion is shielded by the attorney-client privilege even if the cover- age opinion incorporates and relies upon the factual fndings of the investigation reports. the door open for discovery of materials in an insurer's claim fle that are prepared prior to the denial of coverage as well as afer the denial of coverage. 49 Boone, 91 Ohio St.3d at 213. 50 Id.