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

May 21, 2008

Previous Privilege Points have described the difficulty in obtaining work product protection for post-accident investigations. The work product doctrine normally does not protect investigations mandated by internal corporate policies requiring investigations of all accidents, regardless of severity. Some courts erroneously deny protection for parallel lawyer-driven investigations undertaken only for the most serious accidents likely to result in litigation. It therefore should come as no surprise that some companies involve only lawyers in post-accident investigations.

In Cardenas v. Jerath, Case No. 07SA150, 2008 Colo. LEXIS 248 (Colo. Mar. 17, 2008), a hospital arranged for its lawyer to conduct the only investigation of an incident in which a baby suffered injuries during birth. Among other things, the lawyer interviewed the labor and delivery nurse involved in the incident. The trial court held that the work product doctrine protected the lawyer’s notes from disclosure to plaintiff. The Colorado Supreme Court reversed. After assuming that the lawyer’s notes deserved work product protection, the Supreme Court found that the plaintiff could overcome the work product protection, because (1) four years had passed since the incident, so that the nurse’s memory might have faded; and (2) “[a]dditional discovery in this case is impossible because of [the hospital’s] failure to conduct a routine factual investigation.” Id. at *25. The Supreme Court remanded to the trial court, with instructions to redact any of the lawyer’s “mental impressions, conclusions, opinions, or legal theories.” Id. at *26.

Corporations cannot guarantee work product protection for post-accident investigation documents — even those prepared by lawyers. The best approach involves parallel investigations, but in some courts even that strategy will not succeed. This uncertainty highlights the importance of training investigators to accurately and objectively prepare any reports or other documents.