ARE WORKPLACE POST-ACCIDENT INVESTIGATIVE REPORTS DISCOVERABLE?
Employment Workers' Compensation Accident & Injury Personal Injury
Summary: Alabama Supreme Court finds post-investigative report was privileged and not subject to being produced as it was protected by the work-product doctrine
Generally, 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. The
Alabama Supreme Court recently reviewed a matter in which an employer claimed
that a post-investigative report was privileged and not subject to being
produced as it was protected by the work-product doctrine since it was prepared
in reasonable anticipation of litigation.
In Ex parte Schnitzer Steel
Industries, Inc., 2013
Ala. LEXIS 131 (Ala. Sept. 27, 2013), Schnitzer Steel Industries,
Inc. (“Schnitzer Steel”) petitioned the Supreme Court of Alabama for a writ of
mandamus directing the Jefferson Circuit Court to vacate its order compelling
discovery of a post-accident investigation report (“the report”). The facts of the case revealed that after an
employee had part of his leg amputated as a result of a workplace accident,
Schnitzer Steel instigated a post-accident investigation. A safety director and
another individual conducted the investigation that was reviewed and edited by
Schnitzer Steel’s corporate health and safety director and in-house counsel at
Schnitzer Steel. The in-house counsel
also marked the report as privileged.
After the accident but before the report was created, the employee filed
a worker’s compensation claim and almost two years later, the employee filed a
separate action against Schnitzer Steel and certain of its employees, seeking
additional recovery for the injuries suffered.
The employee moved to
compel production of the report and Schnitzer Steel argued in response that the
report was protected by the work-product doctrine because, it said, it had been
prepared in reasonable anticipation of litigation. The trial court granted the
motion to compel and Schnitzer Steel filed a petition for writ of mandamus.
The
employee argued that deposition testimony from Schnitzer Steel “establishes
that the report was prepared in the normal course of business and to address
safety concerns and not in anticipation of litigation.” The Schnitzer Steel
representative testified that such investigations were “routine,” that they were
part of Schnitzer Steel’s “process,” that Schnitzer Steel “used the same
procedure for other injuries, cuts to bruises to burns”, that they were
“specifically for operations, to review the head of operations and understand
what happened, and make sure that they understood ... how to prevent this from
ever happening again.” There was also
testimony that the final report was distributed to the top managers at various
facilities.
An
initial draft of the report was sent to Schnitzer Steel’s corporate health and
safety director “who worked closely with counsel” at Schnitzer Steel. Schnitzer Steel’s in-house counsel reviewed
and revised the draft and added language to the report indicating that it was
privileged. The representative testified that, although investigations of
accidents were routine, “[a]s far as the [report], it was reviewed by counsel,
which typically they didn’t do that for all accidents. That was a special
injury, obviously, and they did make some changes or additions to the
document.” The report was not distributed until after it had been reviewed and
revised by the corporate health and safety director and in-house counsel. It
was further acknowledged “there were definitely concerns” at that time about
potential litigation.
In
Ex parte Alabama Department of Youth Services, 927 So. 2d 805 (Ala. 2005), the Supreme Court of Alabama
addressed whether investigative reports, which the plaintiffs in that case
argued “were not prepared solely in anticipation of litigation,” 927 So. 2d at 808, could constitute
protected work-product. This Supreme Court stated: “The question as to whether
the investigative reports are work-product when there are several motivating
causes, other than anticipated litigation, for preparing them turns on whether
it was reasonable for DYS to assume, in light of the circumstances, that
litigation could be expected.” Id.
After
reviewing the evidence in the Schnitzer Steel matter the Supreme Court of
Alabama found that although anticipation of litigation may not have been the
sole factor for preparing the report, it was “a significant factor in
[Schnitzer Steel’s] decision to have the investigative report[] prepared.” citing Ex parte Alabama Dep't of
Youth Servs., 927 So. 2d at 808. The Supreme
Court noted that in addition to testimony there were concerns about potential
litigation at the time of the inspection of the accident and preparation of the
report, there was also testimony that such
reports were prepared only when litigation was anticipated, that the report was
reviewed and revised by in-house counsel before it was finalized and that a
review of an accident report by in-house counsel did not occur in the ordinary
course of business.
The
Supreme Court of Alabama noted that there may have been “several motivating
causes, other than anticipated litigation, for preparing [the report],” but “it
was reasonable for [Schnitzer Steel] to assume, in light of circumstances, that
litigation could be expected.” citing
Ex parte Alabama Dep't of Youth Servs., 927 So. 2d at 808; Ex parte Flowers, 991 So. 2d 218, 226 (Ala. 2008).
Based on the foregoing, the Supreme Court agreed with Schnitzer Steel that the
report was protected work-product, and the trial court erred in compelling
discovery of that document.