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On September 27, 2013, the Alabama Supreme Court released its opinion in Ex parte Schnitzer Steel Industries, Inc. wherein it addressed the discoverability of post-accident investigation reports. The subject report was prepared following a workplace accident resulting in an amputation. The trial court initially ruled that the report was privileged and not discoverable. The judge later reversed that ruling and ordered that the report be produced. The employer then petitioned the Alabama Supreme Court for a writ of mandamus directing the judge to vacate the order.
On appeal, the employer argued that the report was prepared in anticipation of litigation and, thus, protected as work product. On the flip side, the employee argued that the employer conducted post-accident investigations and prepared reports containing the findings of the investigation for all accidents regardless of whether or not there was any anticipation of litigation.
In this case, the employer’s workers’ compensation manager testified that there was no written policy that a post-accident investigation be undertaken and that such a report is only prepared when litigation is anticipated. The employer’s safety director, however, testified that the report was prepared in the normal course of business and to address safety concerns and not in anticipation of litigation. The Court resolved the inconsistencies between the two deponents by pointing out that, while it is necessary for the report to be prepared in anticipation in order to be afforded the protection of the work product doctrine, it does not have to be the sole reason. Since it was reasonable under the circumstances for the employer to assume that litigation could be expected, the Court granted the petition and issued the writ directing the trial court to vacate its order granting the motion to compel the discovery of the report.
My Two Cents:
This opinion makes it very clear that employers must reasonably expect future litigation when preparing investigative reports in order to enjoy the protections of the work product doctrine. A standard post-accident investigation report may end up being discoverable unless it can be shown that there was some perceived threat of a lawsuit at the time the report was created. For this reason, it is advisable to do something different than your standard operating procedure when you do expect litigation such as involve an attorney in the investigation phase of a claim.
About the Author
This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author email@example.com or any firm member at 205-332-3430.