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.

Court Refuses to Adopt Federal “Private Investigator’s Privilege”

A Florida federal court refused to adopt a federal common law “private investigator’s privilege” and refused to apply Florida’s state investigator privilege in a federal-question case.  Ubiquiti Networks, Inc. v. Kozumi USA Corp., 2013 WL 5880606 (N.D. Fla. Feb. 13, 2013).  You may access the opinion here.

A Florida  state statute provides an evidentiary privilege protecting from discovery, withsherlock holmes silhouette some exceptions, a licensed private investigator’s investigative file.  Florida Stat. § 493.6119.  In Ubiquiti, a case invoking federal-question jurisdiction, a party subpoenaed the investigative file of a Florida private investigator who, citing the Florida statute, refused production on privilege grounds.

The Court held that, because the case arose under federal-question jurisdiction, Federal Rule of Evidence 501 governed all privilege questions.  As a result, Florida’s state-law investigator privilege was inapplicable. And unlike some other courts, the Florida federal court refused to recognize the state-law privilege on grounds of comity, stating

State privilege law is sometimes a factor in the Rule 501 analysis, but a federal court in a federal-question case cannot properly abdicate its responsibility to apply the common law, as interpreted by the court in light of reason and experience, just because state law takes a different approach.

The court also refused to recognize a federal common-law investigator privilege, noting that “the common law has never recognized a private investigator’s privilege”; “nor should it.”  The court cited the “good reasons” for the common-law attorney–client privilege, psychiatric privilege, legislative privilege, and self-incrimination privilege, but found that a “private investigator’s work does not come close” to matching the bases for these evidentiary privileges.

The court agreed that a private investigator’s work may fall within the attorney–client privilege or the work-product doctrine, but rejected an investigator’s privilege as an independent basis for protection.

Protecting Witness Statements from Discovery 1

A critical part of an attorney-led investigation involves interviewing witnesses, whether corporate-employee witnesses, outside consultants, or independent, third-party witnesses.  Corporate counsel must determine whether to document the witness’s interview and, if so, whetherwitness by summary memorandum, audio- or video-recording, signed witness statements, or otherwise.  The questions become whether documented witness statements are discoverable and how in-house and outside corporate counsel should handle these statements to maximize the potential for protection.

Several issues arise in answering these questions.  While the corporate attorney-client privilege may (depending on your jurisdiction) protect counsel’s employee-interview notes, does it also protect a signed an employee’s signed statement? The work-product doctrine, which is a preclusion doctrine rather than an evidentiary privilege, may protect a lawyer’s summary memoranda of witness interviews, but the protection is not absolute and may give way upon a sufficient showing of need.  And federal and state civil procedure rules may differ, causing a witness statement to be discoverable in a state forum even if not in a federal forum.

In my article, Protecting Witness Statements from Discovery, recently published by InsideCounsel, I explore all these issues.  The article, accessible here, distinguishes the too-often-conflated work-product doctrine and the attorney-client privilege.  It also outlines legal arguments for protecting witness statements of corporate employees and independent witnesses, and concludes with a set of practice tips for in-house or outside counsel when dealing with witness interviews.  My thanks to InsideCounsel for permission to repost my article in this blog.