Decisions Highlight the Importance of Lawyers Documenting the Basis for a Work Product Claim: Part III

December 14, 2011

Last week’s Privilege Point explained that the Southern District of Florida rejected an excursion company’s work product claim for post-accident incident reports. Among other things, the court reviewed the incident reports’ content in reaching this conclusion. Bridgewater v. Carnival Corp., Case No. 10-CV-22241-KING/MCALILEY, 2011 U.S. Dist. LEXIS 106786 (S.D. Fla. Sept. 20, 2011).

The court next turned to an accident report prepared nine days after the accident by Carnival Cruise Lines. Interestingly, Carnival relied on a manager’s affidavit that essentially paralleled the unsuccessful Rapsody Tours affidavit mentioned in last week’s Privilege Point. The Carnival affidavit explained that Carnival investigates “‘most claims of passenger injuries in anticipation of the litigation'” Carnival frequently faces after accidents. Id. at *17. As with Rapsody’s incident reports, the court also examined Carnival’s accident report in camera. The court concluded that “[u]nlike Rapsody’s incident reports, this report is not a straight narrative of the events of September 9, 2009; it is a directed collection of data that is clearly geared toward a possible defense against a claim.” Id. at *18. Furthermore, “[u]nlike the Rapsody incident reports, the accident report itself supports the assertions made in the declaration, that was offered to support the claim of privilege.” Id. Finally, the court also held that plaintiff could not overcome the work product protection, although two years had elapsed since the accident – noting among other things that the plaintiff “will have the benefit of the Rapsody incident reports.” Id. at *20 .

Not all courts would have protected Carnival’s accident report, but this case highlights the need for companies and their lawyers to carefully support any work product claim in any documents they will withhold during litigation.