When Accident Investigation Reports Are Protected By The Work-Product Doctrine – “Prepared in Anticipation of Litigation”
By: Tracey McGurk
Recently, the Twelfth District Court of Appeals, after considering the “nature of the property loss, the subsequent arson investigation, and the suspicious circumstances surrounding the claim,” determined that the trial court failed to protect disclosure of all documents prepared in anticipation of litigation. Thus, the appellate court expanded the scope of privilege to documents prepared months earlier than originally determined by the trial court.
In Nationwide Agribusiness Insurance Company v. Heidler, the defendant’s home and vehicle were completely destroyed by fire in May 2014. During discovery of defendant’s counterclaim for breach of contract, the insurance company refused to answer certain interrogatories and withheld production of certain files related to the fire under the doctrine of work product privilege. The trial court found the insurance company did not begin preparing for litigation until October 2014, when two of its employees became aware that it was preparing to file a declaratory judgment action. Thus, the court compelled the insurance company to produce the requested documents prepared up to that date.
The Court of Appeals, however, reversed. The court noted, generally, that documents “prepared in anticipation of litigation” rather than those prepared “in the ordinary course of business” are protected from discovery. Further, a careful review of the facts is needed when determining whether a document falls within either of these categories. The Court continued, noting that because “an insurance company has a routine duty to investigate accidents . . . such materials generated are not prepared in anticipation of litigation but prepared in the ordinary course of business.” The Court also stated the trial court was correct in considering when the insurance company “decided the type of litigation and when that litigation became imminent.” However, the Court found a July report by a Certified Fire Investigator significant for demonstrating when the insurance company believed litigation was imminent, where the report concluded that the fire was caused by “an intentional human act.” The Court stated that this report made “the likelihood that litigation would ensue . . . substantial.” Accordingly, documents created subsequent to the July report were protected by the work-product doctrine and not discoverable.
It is important for your company to demonstrate when the imminence of litigation arose in order to protect certain documents from discovery. Further, those documents prepared during the regular activities of business, such as materials generated during an accident investigation while under a “routine duty to investigate,” may not be protected and could be discoverable.
For more information, please contact Mansour Gavin’s Civil Litigation Group.