Smith also filed a request for production. State Farm objected to the request. State Farm responded and asserted that all documents were prepared in anticipation of litigation because 12 days after the accident Smith obtained counsel. In support of its response, State Farm produced an affidavit from the State Farm employee handling the claims file. State Farm then filed this petition for a writ of mandamus.
Mandamus is the appropriate method of review of discovery orders.
The use of a writ of a mandamus to compel or to prohibit discovery is restricted because of the discretionary nature of a discovery order. The mere fact that litigation does eventually ensue does not, by itself, cloak materials with the protection of the work-product privilege. Justice Lyons's scholarly special concurrence correctly explains it. The parties are at issue if the party requesting the document files a motion to compel. Once Smith filed a motion to compel the production of the documents, he and State Farm were at issue whether the documents in the claims file, prepared before State Farm was sued, were, in fact, prepared in anticipation of litigation.