Most courts hold that the work product doctrine protects post‑accident investigation materials only if their creation was “primarily” motivated by anticipated litigation rather than by some external or internal requirement. However, every so often a court takes a broader view.
In Gruenbaum v. Werner Enterprises, Inc., Civ. A. No. 2:09-CV-1041, 2010 U.S. Dist. LEXIS 107274 (S.D. Ohio Oct. 7, 2010), the court analyzed materials a trucking company prepared after an accident. The plaintiff pointed to the trucking company’s Safety Director’s testimony that the company “prepared its investigation reports in ‘substantially the same manner’ when dealing with routine or catastrophic incidents.” Id. at *14. The plaintiff also argued that the trucking company “was required by federal law to compile this information, precluding application of the work product doctrine.” Id. at *14-15. After an in camera review of the documents, the court rejected plaintiff’s arguments. The court held that “the ‘driving force’ behind the creation of the information was the anticipation of litigation,” and that the “fact that the information, created because of litigation, may also serve other purposes does not deprive that information of its character as work product.” Id. at *15.
Most courts would not take such an expansive approach, but lawyers should be looking for a chance to cite such cases.