A workplace accident causes injury. In-house legal counsel edits the resulting post-accident investigation report and labels it “prepared in anticipation of litigation.” Many would assume without question that the report is protected by the work product doctrine. However, a recent Alabama Supreme Court decision reminds us that it is not that simple. In Ex parte Schnitzer Steel Industries Inc., No. 1120251 (September 27, 2013), the court held that a post-accident investigation report was protected work product and directed the trial court to vacate its order compelling discovery of the report. That appellate review was necessary is a reminder to be vigilant in maintaining the work product protection of such reports.
Plaintiff was injured in a workplace accident, after which the parent company of his employer conducted an investigation. Employees of the parent company prepared a draft report of the investigation, and in-house legal counsel edited the draft, marking it: “Attorney Client Privilege Prepared for Potential Litigation.” The company did not have a written policy regarding post-accident investigations, and there was inconsistent testimony about the reasons for the report. The workers’ compensation manager testified that post-accident reports were prepared only when an accident was likely to lead to litigation. A former employee who assisted with the investigation testified that the report was prepared in the normal course of business to address safety concerns. It was undisputed that legal counsel helped finalize the report and that legal counsel did not participate in every accident investigation.
The Work Product Doctrine: Prepared in Anticipation of Litigation
In considering the company’s arguments, the Alabama Supreme Court repeated the elements of the work product doctrine:
Documents and tangible things otherwise discoverable, which are prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, are protected as work product and are not ordinarily discoverable. See Rule 26(b)(3), Ala. R. Civ. P. Ex parte Meadowbrook identifies the elements of the work product exception to the general discovery rule as follows: “ ‘(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or representative of that party.’ ”
There was no dispute that the post-accident investigation report met the first and third elements of the test, and plaintiff conceded that the report was prepared at a time when it was reasonable to expect litigation. Thus, the sole issue addressed by the court was whether the report was in fact prepared in anticipation of litigation.
The purpose for which the report was created is the determinative factor in deciding whether it is protected work product. As the court pointed out, even when “litigation is reasonably anticipated, certain, or even underway, a court must still undertake an examination of why a document was produced.” It is not necessary that the report be prepared solely in anticipation of litigation. Rather, the court explained in a previous case, “the question as to whether … investigative reports are work product when there are several motivating causes, other than anticipated litigation, for preparing them turns on whether it was reasonable . . . to assume, in light of circumstances, that litigation could be expected.”
Applying those standards, the Schnitzer Steel court found that possible litigation was not the only reason for the report, but it was a significant factor in the decision to prepare it. It was important that the report was edited by in-house counsel and that counsel did not participate in every accident investigation in the ordinary course of business. So, even though there were several reasons for the investigation, one significant reason was the possibility of litigation. Therefore, the report was protected by the work product doctrine.
Practice Pointers: Identify and Protect Work Product
The fact that the trial court ordered disclosure of the post-accident investigation report, and an appellate court order was required to protect it as work product, are reminders that companies must be vigilant in protecting the work product doctrine. Specifically, you need to be able to demonstrate that possible litigation was a significant factor in deciding to prepare the report. This case helps outline some ways in which to make that showing and maintain work product protection:
Have a written policy specifying when and why post-accident investigations are conducted and reports are prepared. The policy for accidents that are not likely to result in litigation should be different from the policy for accidents that may lead to litigation.
Although there often are several reasons for an investigation report, for accidents in which litigation is reasonably anticipated, your written policy should expressly state that anticipation of litigation is one reason for the investigation report.
All investigation reports of accidents that may lead to litigation should be directed to legal counsel. This is not simply to protect work product -- it is important to timely advise legal counsel of potential litigation.
In-house legal counsel should direct the investigation of accidents in which litigation is reasonably anticipated. If your company does not have in-house legal counsel, consider whether the accident merits hiring outside legal counsel to direct the investigation.
Any post-accident investigation report should be labeled “Prepared in Anticipation of Litigation,” if in fact the company believes there is a possibility of litigation.