Are Early Post-Accident Investigation Materials Gathered by Trucking Companies Prior to Litigation Protected by Work Product Privilege?

It is well known that trucking companies often act quickly to investigate accidents involving their vehicles to preserve evidence in the event litigation arises in the future.  Questions arise as to whether the information gathered in such early investigations is protected from discovery by the attorney work product privilege in later lawsuits.

Judge Sylvia H. Rambo of the Federal Middle District Court of Pennsylvania addressed such a scenario under the Federal Rules of Discovery in her recent decision in the case of Johnson v. Predator Trucking, LLC, Civil No. 1:13-CV-1683 (M.D.Pa. Feb. 10, 2014 Rambo, S.J.).

The discovery at issue in this case involved documentation and photographs created within a few months of the accident but prior to any lawsuit being filed.  In her Opinion, Judge Rambo pointed out that some of the photos and documentation were created after defense counsel had been assigned to defend the Defendant trucking company and truck driver in the event litigation did ensue in the future.

In reviewing the Federal Rules of Civil Procedure pertaining to discovery, i.e. Fed.R.C.P. 26, the court granted in part and denied in part the Plaintiff's motion to compel the post-accident investigative materials created and/or secured by the Defendants within the first several months after the occurrence of the accident.

In attempting to set parameters for the application of the work product doctrine to the issue presented, Judge Rambo noted that the key test to be applied is whether it could be reasonably said that the materials at issue were prepared "in anticipation of litigation."

Under a somewhat amorphous standard, the court noted that while litigation did not have to be imminent to render the documents protected from discovery, a "mere possibility" of some future litigation would not be enough to meet the standard for claiming the work-product privilege.

In  applying the standard to this case, Judge Rambo not only emphasized that the Defendants had been assigned defense counsel by the carrier around the time of the creation of the documentation at issue, but also noted that the Defendants had also received word around that time that the Plaintiff had indeed retained personal injury counsel.

The court found some of the documents at issue, including a reenactment of the accident by representatives of the Defendants and certain claims file notes, were not discoverable.   The court did grant the Plaintiff's motion to compel the production of other documentation such as photographs taken by the local investigating police department.

Anyone wishing to review this Opinion, may click this LINK.

Source:  Article: "Accident Reenactment Photographs Protected From Discovery" by Saranac Hale Spencer of The Legal Intelligencer (Feb. 14, 2014).