The Burden of Showing that Accident/Incident Reports Are Protected by the Attorney-Client Privilege and/or Work-Product Doctrine is Not Getting Easier

March 12, 2014
Lew Bricker



The ability of companies and their corporate counsel to withhold incident and accident reports from disclosure on the basis that they are protected by the work product doctrine or the attorney-client privilege is becoming more and more difficult as a result of discovery rules, recent court decisions, and the unified philosophy among courts that discovery should be an opportunity for parties to obtain all facts regarding an incident. Recently, a federal court in the Northern District of Illinois held that incident reports prepared by the defendant after a slip and fall in a hotel were not protected by either the attorney-client privilege or work-product doctrine.

In Nelson v. Intercontinental Hotels Group Operating Corp., No. 12 cv 8485, the defendant refused to produce in discovery multiple Incident Reports entitled "General Liability Claim Report Forms" on the basis that they were protected by both the attorney-client privilege and work-product doctrine. The defendant initially argued that the Incident Reports were protected against disclosure because its employees were required to prepare such reports pursuant to corporate policy and they were forwarded to its risk management team in anticipation of possible litigation. Magistrate Judge Young B. Kim rejected these arguments and found that the Incident Reports were not subject to either the attorney-client privilege or work-product doctrine.

The district court specifically concluded that the attorney-client privilege did not apply because the defendant failed to show that the Incident Reports were prepared by someone in the control group, that they were forwarded to the risk management team for purposes of obtaining legal advice, the documents were submitted in confidence, and that the information remained confidential. It is worth mentioning that Illinois follows the “control group” analysis and not the Upjohn test. Illinois’ control group analysis is much narrower than the majority states and federal view as only those individuals who make decisions in top management are considered to be protected under the attorney-client privilege. Consolidation Coal Co. v Bucyrus-Erie Co., 89 Ill.2d 103, 118-19 (1982). Judge Kim also found that the defendant failed to demonstrate that the work product doctrine applied to the Incident Reports because there was no evidence indicating that the defendant's attorneys (specifically) directed the employees to prepare the documents or that the information contained its attorneys' mental impressions.

Judge Kim's ruling in Nelson provides a framework that companies with accident/incident reporting policies must appreciate and understand when doing business in Illinois. Courts in Illinois, both state and federal, are growing weary of permitting parties to withhold documents without a strong basis for doing so. The argument that the incident or accident report should be withheld because company policy required the employee to complete the form has not been accepted by Illinois courts.

It must be appreciated that in Illinois, reports prepared following an incident or accident will most likely be discoverable unless there is a strong showing that the information was prepared: 1) by an attorney, 2) by someone in the company's control group, 3) by someone who is or might become a party, and/or 4) for purposes of obtaining legal advice. Even if a company is able to demonstrate this, courts in Illinois may still require companies to disclose all factual information regarding how the accident occurred that might be contained in the privileged document.