Analyzing Work Product Protection for Documents Created During Post-Accident Investigations: Part I

May 7, 2008

The work product doctrine only protects documents created because of litigation or anticipated litigation, and which would not have been created in substantially the same form absent the litigation. Documents created pursuant to some external or internal requirement or policy normally cannot meet this standard.

In Fulmore v. Howell, 657 S.E.2d 437 (N.C. Ct. App. 2008), defendant corporation hired an outside lawyer to investigate a fatal truck accident involving one of its employees. The court rejected the company’s claim that the work product doctrine protected the investigation report, quoting (1) the company’s Statement of Safety Policy explaining that “[a]ll accidents involving a Company vehicle will be reviewed by the Accident Review Board”; and (2) deposition testimony by the company’s former Safety Director, agreeing with plaintiff’s lawyer that “you do this every time there is an accident” and a report “is generated by you in the normal course of business whenever there is an accident.” Id. at 444.

As counterintuitive as it might seem, companies which take safety so seriously as to require investigations of all accidents actually decrease, if not eliminate, the chance to successfully assert work product protection for documents created during such investigations. Some companies have tried to enhance the protection by undertaking parallel investigations only after very serious accidents likely to result in litigation. Next week’s Privilege Point will discuss that approach.