Court Rules Post-Injury Incident Reports Not Privileged 1

An Illinois federal court, applying Illinois privilege law, ruled that incident reports completed by hotel employees following a guest’s accident were not protected from discovery by the attorney–client privilege or the work-product doctrine. Nelson v. Intercontinental Hotels Group Operating Corp., 2013 WL 5890612 (N.D. Ill. Nov. 1, 2013). You may access the opinion here.

Following a hotel guest accident, the hotel’s employees—pursuant to company policy—completed incident reports titled “General Liability Claim Report Form.”  accidebt reportThese forms were then sent to the hotel’s Risk Management Team.  In a subsequent lawsuit, the plaintiff moved to compel production of these incident reports, but the hotel objected on grounds that the attorney–client privilege and work-product doctrine precluded their disclosure.

Although the employees were specifically requested—in accordance with a company policy—to complete the reports, the court found that the hotel failed to establish the requisite elements of the attorney–client privilege.  The hotel did not demonstrate that the employees sent the reports to the risk management team “for purposes of seeking legal advice,” or that the reports were confidential when made and intended to remain confidential.

The court also rejected the hotel’s work-product objection.  Noting that the work-product doctrine protects documents prepared by an attorney or his agent in anticipation of litigation, the court found that the hotel submitted no evidence that its attorneys directed the hotel employees to prepare the incident reports or that the reports reflected attorneys’ thought processes and mental impressions.

Instructively, the court stated that simply making the conclusory statement that the employees prepared the incident reports in anticipation of litigation is insufficient, particularly when employees prepare the reports in the ordinary course of business:

Based on the court’s in camera review, the incident reports were completed in the ordinary course of business, per corporate policy, which may have the incidental effect of being helpful in the event of future litigation.

Contrasting Case and Lessons

The court distinguished its situation with the incident-report situation in Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650 (S.D. Fla. 2009).  In Fojtasek, legal counsel requested that an employee prepare an incident report and then send that report to the company’s legal department.  The company supported the privilege and work-product assertions with a detailed affidavit explaining the request, reasons for the report, and how the company used the report.

In contrast, employees in Nelson prepared the incident reports pursuant to existing corporate policy—in the ordinary course of business—and sent the reports to the risk department.  The Nelson court distinguished Fojtasek and ordered the incident reports produced.