Last Friday, a divided Supreme Court of Alabama, applying the work-product rule, determined that a post-accident investigation report, conducted and prepared by an employer’s safety director and a co-worker and presented to the employer’s corporate health and safety director and its in-house counsel was privileged and could not be reached through discovery [Ex parte Schnitzer Steel Indus., Inc. (Jackson), 2013 Ala. LEXIS 131 (Sept. 27, 2013)]. The majority, reversing a trial court’s order that had required release of the report, held that although the anticipation of litigation may not have been the only reason the employer had the report prepared, it was a significant reason for producing it.
An employee had part of his leg amputated as a result of a workplace accident that occurred at the employer’s metal-recycling facility in Birmingham. After the accident, but before the safety director’s report was created, the employee filed a worker’s compensation claim. More than a year later, the employee and his wife filed a separate civil action against the employer and several co-employees seeking additional damages. During the discovery period, the trial court ordered the employer to produce, among other things, “reports of safety inspections.” The employer replied that it had produced all reports other than the investigative report which, according to the employer, was privileged. The employee argued that the report had been prepared in the normal course of business and to address safety concerns and not in anticipation of litigation. The trial court agreed and ordered its production.
The high court indicated that evidence suggested that the employer’s in-house counsel was involved in the drafting and editing of the report, that ordinarily safety reports were not reviewed by counsel, and that the report was not distributed until it had been cleared by counsel. Citing prior precedent, the high court held that it was not necessary that statements be made solely in anticipation of litigation to be treated as privileged work product, that there appeared to have been “several motivating causes, other than anticipated litigation, for preparing [the report],” but that it was certainly reasonable for the employer to assume, in light of circumstances, that litigation could be expected. Accordingly, the report was privileged.