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.
This is an important case for employers to consider with respect to post accident reports and the potential for successfully arguing that they are not discoverable because they were prepared, at least in part, in reasonable anticipation of litigation.