Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents not likely to result in litigation.

In In re Bard IVC Filters Products Liability Litigation, MDL No. 2641, 2016 U.S. Dist. LEXIS 17583 (D. Ariz. Feb. 11, 2016), a medical device company's lawyer hired a former employee as a consultant to investigate several patient deaths allegedly associated with the company's device. Plaintiffs argued "that the Report was prepared in the ordinary course of business" — but the court disagreed. Id. at *79. It pointed to the defendant's in-house lawyer's and the consultant's testimony "that the Report was an unusual undertaking," was "a more extensive, detailed analysis than [the company] normally created," and "was substantially different" from other reports. Id. at *80, *86. Although acknowledging that "there are some similarities" between the Report and the defendant's ordinary product investigations (called "health hazard evaluations"), the court cited the consultant's testimony about numerous specific differences between the Report and those ordinary evaluations. Id. at *90, *72. Significantly, the court also reviewed in camera both ordinary evaluations and the withheld Report — concluding that the court's "close review of the [health hazard evaluations] and the Report confirms these distinctions." Id. at *87.

Companies motivated by anticipated litigation to conduct post-accident investigations normally must establish such investigations' differences from other ordinary and routine incident reports — remembering that courts may well read both types of documents in camera.