An employer’s post-accident investigation deserves work product protection only if it was primarily motivated by anticipated litigation. Thus, such investigations normally do not deserve work product protection if: (1) they were externally or internally required; or (2) they were undertaken in the employer’s ordinary course of business.
In Dawson v. Ohio Gratings, Inc., 5th Dist. Stark No. 2020CA00179, 2021-Ohio-2028, 2021 Ohio App. LEXIS 1999, at ¶ 2 (Ohio Ct. App. June 15, 2021), plaintiff sustained “serious injuries” while operating a press that his employer OGI owned and maintained. The employer claimed work product protection for a post-accident investigation report. But in her deposition, OGI’s in-house paralegal (1) agreed with the plaintiff’s lawyer that “when someone gets injured on a job . . . there’s an accident report that’s filled out by the injured worker and by their supervisor”; (2) admitted that OGI has a “policy” requiring such reports; (3) did not recall whether someone filled out such a post-accident form after the plaintiff’s accident, but that “[w]e should have”; (4) testified that “[o]ur standard accident report I believe is approximately seven pages” and agreed that it is on a “preprinted form.” Id. ¶ 12. Not surprisingly, the court concluded that the OGI paralegal’s “deposition testimony is sufficient to support a determination the accident investigation report was prepared in the ordinary course of OGI’s business.” Id. ¶ 14.
There may have been nothing that this employer’s paralegal could have done about the employer’s policy, but defendant companies in this situation should be looking for any opportunity to argue that a post-accident investigation was different from the ordinary course of business, or was special in some way – because the company anticipated litigation.