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October 2025 • Source: Zarwin Baum
When a corporation faces a lawsuit stemming from an incident on its premises, the stakes are high. The initial response to such litigation can shape the trajectory of the case, influence exposure, and determine the scope of information that may be discoverable by opposing parties. One of the most effective strategies for protecting your company’s interests is the early retention of outside counsel.
The Privilege Advantage: Protecting Internal Investigations
Pennsylvania law provides robust protections for communications and documents generated in the course of internal investigations—if those investigations are conducted under the direction of legal counsel. Both the attorney-client privilege and the work product doctrine can shield sensitive information from discovery, but their application is highly fact-dependent.
Attorney-Client Privilege
The attorney-client privilege protects confidential communications between corporate employees and counsel when those communications are made for the purpose of obtaining legal advice. Courts look for clear evidence that:
- The communication was made at the behest of counsel.
- The purpose was to further counsel’s provision of legal advice to the corporation.
- Confidentiality was maintained.
Case law such as Upjohn Co. v. United States and Newsuan v. Republic Services Inc. confirms that statements made by employees to corporate or outside counsel, specifically for legal advice, are privileged. However, courts are less likely to extend this protection if the investigation appears to be mere fact-gathering or if the attorney-client relationship is ambiguous. In cases where the communications were made between corporate counsel and corporate employees, the factual analysis was less clear cut and provided an opportunity for courts to rule in favor of disclosure. Whereas, cases involving outside counsel significantly favored the preservation of the privilege as the issues of the attorney-client relationship and purpose of the communications were more clearly defined and thus favored of upholding the privilege.
Work Product Doctrine
The work product doctrine offers even broader protection for materials prepared by attorneys, including notes, memoranda, and legal theories. In Estate of Paterno v. NCAA, the court held that documents prepared by outside counsel in the course of an investigation were protected “in their entirety,” as they reflected the attorney’s mental impressions and legal strategies.
Importantly, this protection is strongest when outside counsel is engaged specifically to represent the corporation in anticipation of litigation. Materials prepared by non-attorney representatives, such as claims adjusters, receive far less protection and may be discoverable unless they reflect legal strategy or mental impressions.
Why Outside Counsel Makes the Difference
Engaging outside counsel early in the process offers several critical advantages:
- Clear Establishment of Privilege: Outside counsel’s involvement signals that the investigation is for legal purposes, not just business or fact-finding. This distinction is crucial for invoking privilege protections.
- Broader Work Product Protection: Courts are more likely to protect documents and communications prepared by outside attorneys, safeguarding your company’s legal strategy.
- Credibility and Independence: Outside counsel brings an independent perspective, which can be vital if the investigation’s integrity is challenged in court.
- Strategic Guidance: Early legal advice helps shape the company’s response, ensures compliance with confidentiality protocols, and minimizes the risk of inadvertent waiver of privilege.
Practical Takeaways for Corporate Counsel
- Act Quickly: Retain outside counsel as soon as an incident occurs or litigation is anticipated.
- Document the Purpose: Ensure all communications and investigations are clearly documented as being conducted for the purpose of obtaining legal advice.
- Maintain Confidentiality: Limit disclosure of privileged materials to those who need to know, and implement protocols to safeguard sensitive information.
- Coordinate with In-House Counsel: Work collaboratively to ensure privilege is properly claimed and maintained throughout the process.
The early retention of outside counsel is not just a procedural step—it is a strategic imperative. By engaging experienced civil defense attorneys at the outset, corporations can maximize privilege protections, reinforce the integrity of their legal response, and position themselves for the strongest possible defense. Don’t wait until discovery demands arrive; act proactively to safeguard your company’s interests from day one.
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Painting the Full Picture: Smarter Claim Investigations with Fraud Sniffr
October 2025 • Source: Fraud Sniffr
Understanding the full scope of a claimant’s activities is the major pathway to informed decision-making and successful claim defense. That’s why each investigative effort needs to align with the full scope of your case. Even when a subject tries to eliminate their digital footprints, Fraud Sniffr delivers a multi-angle, contextually rich view of behavior and lifestyle. Nothing tells a clearer story than verified connections and consistent timelines backed by metadata. Our reporting integrates social, employment, and even criminal records through OSINT content. The landscape is evolving; claimants are getting smarter about hiding, but so are we about finding. Through collaboration with human expertise and partnership, your team gets investigation results you can trust—even in the toughest cases.
By integrating three key pillars simultaneously—Social Media with Scan Now, Employment Search, and Criminal Records—you gain actionable insights to paint the full picture.
Social Media Activity: See what claimants personally share about their lifestyle, activities, and interests when they think no one is watching. This includes jobs, hobbies, or passions that are under-the-table and/or not reported via W-2 earnings, such as Etsy posts or flea market pop-ups.
Employment Search: We trace a claimant’s tax-reported work history, current employment status, and other income streams to paint an accurate picture of their documented professional life.
Criminal Records: A background review reveals any prior incidents/undisclosed arrests, or convictions that could be relevant to your case. Should the claimant have an income/work gap, and you do not know why, they could very well have been incarcerated in another state or jurisdiction.
The Result: Holistic approach provides a clearer and more complete narrative—not just about what a claimant does for work yet to be turned over, but also how they spend their personal time. Each information source complements the other, creating a powerful, fact-based timeline that helps you make data-driven decisions.
To discuss how our comprehensive solutions can support your team, please contact Fraud Sniffr at 410.779.3501.
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September 2025 • Source: FraudSniffr
Conference discussions among insurers in 2025 include the fact that the we have been in a hard market for 22 quarters. Let that sink in. 22 quarters, that’s almost 6 years. The industry has seldom seen a hard market last for more than 6 months let alone 6 years. And… no one is quite sure what will take us out of it.
The US Marine motto comes to mind as a possible next move for the industry; “Improvise, Adapt, Overcome”.
We have already seen seismic change in the insurance market – and we suspect these trends have emerged as an adaptation to this extraordinary impasse of a 6-year hard market.
- – Exploding market of self insureds with a multi-layer tower structure (12 or more in many cases)
- – Captive insurance structure developing in the face of rising premiums for certain business classes
- – Specialty towers are forming to manage unusual risk
From our perspective, we see enormous effort to mitigate risk at underwriting, which is the industry’s first move in every risk scenario. However, risk on the claim side (where we live) could use more attention — not every claim needs to be investigated, but probably putting a social media Sniffr on a questionable file right away would help identify malingering or bad intent sooner than waiting for a 2nd year adjuster at a TPA desk to notice something is amiss after paying on the claim for five years.
Doubling down on our position, we wonder if the reason carriers are refusing to write higher risk because they have experienced too much loss on the claims side without even identifying that the issue! Maybe less loss in payouts would increase appetite for risk in underwriting.
But here we are. Fraud Sniffr has adapted to this strange new world as well by building file sharing tools so all forty five (or so) attorneys in the tower can view surveillance data throughout the mediation and trial process. We are on your side looking for indicators of nuclear verdicts, and we are sussing out questionable medical practitioners.
Working together we should be able to continue navigating a hard market, or slowly start moving back to a more normal environment.
#Litigation #WorkersCompensation #TruckingDefense #TIDA #Innovation #OSINT #RiskManagement #GLDefense #SOCMINT #DefenseCounsel #TPA #EmployerDefense #Themis #DefenseData #FNOL #SIU #RetailDefense #TransportationDefense #Adjusters
Ready to start a search with FraudSniffr? Follow this link to start a referral
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September 2025 • Source: Zarwin Baum
BTI Consulting has recognized Zarwin Baum as a Standout firm in its 2026 Litigation Outlook Report. The report also identifies the firm as an Intimidating Opponent—firms that legal decision makers view as particularly formidable in litigation.
The 2026 Litigation Outlook is informed by surveys and interviews with more than 300 legal decision makers, including General Counsel, Chief Legal Officers, and heads of litigation, who identified firms best equipped to handle the industry’s most challenging disputes.
Zarwin Baum’s Litigation Group represents clients across a broad spectrum of civil matters, including commercial disputes, construction, casualty defense, insurance coverage and bad faith, professional liability, liquor liability, transportation, employment, and environmental law. Known for being technologically savvy and resourceful, the team employs a strategic, results-driven approach designed to place clients in the strongest possible position to achieve a favorable outcome.
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November 2025 • Source: Themis Advocates Group
We are excited to share that Themis member Bryan Schwartz was named a Top 25 Transportation Lawyer by Attorney Intel! This year’s awardees were selected for their exceptional ability to guide transportation clients through complex legal and regulatory challenges, demonstrating both technical mastery and a deep understanding of the sector’s operational realities. Congrats Bryan!
Check out the link below to read more about Bryan and the full list of awardees:
https://lnkd.in/gH8wEZFR
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