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

May 14, 2008

Not surprisingly, corporations’ post-accident investigations frequently implicate privilege and work product issues in a high-stakes context. Corporations which require and routinize such investigations risk losing the privilege (because the investigation does not seem primarily motivated by the need for legal advice) and the work product protection (because the investigation seems motivated by compliance with a corporate directive rather than anticipated litigation). Careful corporations sometimes undertake lawyer-directed parallel investigations only for very serious accidents, which should enhance both protections’ applicability.

However, some courts continue to reject corporations’ protection claims. In Cataldo v. National Grid USA, 2008 Mass. Super. LEXIS 33 (Mass. Super. Ct. Feb. 15, 2008), defendant National Grid investigated an accident in which a high voltage power line fell on plaintiff. Under National Grid’s elaborate categorization procedure, very serious accidents called “Level 4 incidents” trigger Legal Department parallel investigations without any pre-ordained guidelines. Id. at *3. National Grid’s lawyer explained that the company annually undertakes approximately 1,500 Level 1 through 3 investigations, but only 10-12 Level 4 investigations. The lawyer undertook such a Level 4 investigation after the accident involving plaintiff, and shared the report and supporting documentation only with National Grid’s in-house and outside lawyers. At the same time, the company undertook a more routine investigation for “‘the purpose of dispersing information and “lessons learned.”‘” Id. at *5 (internal citation omitted). The court nevertheless rejected National Grid’s work product claim. Pointing to the self-evident fact that “National Grid has not seen fit to use this [lawyer-driven] procedure for lesser injuries at Level 3 and below,” the court concluded that the company’s procedure was “an artificial scheme set up by National Grid to avoid giving meaningful discovery to severely injured claimants,” and “a sham on the Court and the other parties in this case.” Id. at *20-21.

In some courts, companies stand little or no chance of protecting documents created during post-accident investigations, regardless of the careful procedures they implement. Some companies have sought work product protection by arranging for a single post-accident investigation conducted only by lawyers. Next week’s Privilege Point will discuss that approach.