Depending on the state, the critical attorney-client privilege protection might be articulated in one or more of several sources, including laws, court rules and common law. In Eddy v. Farmers Property Casualty Insurance Co., 2026-Ohio-626, — N.E.3d — (Ohio Feb. 26, 2026), the Ohio Supreme Court explained that state’s remarkably convoluted privilege application in the insurance bad faith setting.
The Supreme Court explained that Ohio initially “codified the privilege in 1853 as part of its first Code of Procedure” — but that in a 1994 case the court relied on its common law authority to “effect[] an expansive remaking of the law on privilege.” Id. at ¶¶ 17-21. Further complicating things, following a 2001 Ohio Supreme Court decision focusing on insurance bad faith claims, “the General Assembly in 2007 modified the privilege statute to deal explicitly with claims of insurer bad faith.” Id. at ¶ 24. But “that statutory provision only deals with attorney-client privilege, not the work-product doctrine.” Id. at ¶ 35.
After providing this dizzying history, the Ohio Supreme Court finally addressed the insurance bad faith issue before it.