Wednesday, April 21, 2021

Report of Consulting Firm Retained By Defendant After Industrial Accident Ruled Discoverable

In the case of Vimelson v. Johnson Mathey, Inc., 2021 Pa. Super. 20 (Pa. Super. Feb. 17, 2021 Bender, P.J.E., Lazarus J., Stevens, P.J.E.) (Op. by Lazarus, J.), the Pennsylvania Superior Court affirmed the trial court’s decision that a Defendants’ consulting firm's report, which was prepared after an employee died in an industrial accident, was discoverable because the consulting firm was not hired, and their report was not prepared, in anticipation of litigation. 

According to the Opinion, after the decedent fell to his death while working at a plant, the Defendants retained a consulting firm five (5) days after the event to conduct a site safety investigation and determine the cause of the accident.

During the course of discovery, the Plaintiff became aware of the report and filed a Motion to Compel to secure the same. The Defendants argued that the report was prepared in anticipation of litigation and was, therefore, privileged. The Defendants asserted that the consulting firm was a non-testifying expert consultant and no exceptional circumstances existed to entitle the Plaintiff to access to the report.

The Plaintiff responded by arguing that it was the Defendants, and not the Defendant’s attorneys, who had hired the consulting firm. The Plaintiffs also asserted that the report by the consulting firm had not been prepared in anticipation of litigation.

The Defendants had also filed a Motion for a Protective Order in response to the Motion to Compel.

As noted, the Superior Court affirmed the trial court’s ruling that the report was discoverable.  The trial court had agreed that the consulting firm had not been retained in anticipation of litigation.  The appellate court agreed that it appeared from the record that the consulting firm had been retained for a business purpose, that is, to find the cause of the accident and to enable the Defendant to implement changes to prevent such accidents from reoccurring in the future.

The court ruled that the fact that litigation may have been foreseen did not, in and of itself, support a ruling that the discovery should be precluded.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 2, 2021).

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