After an accident, most companies have their employees produce an incident report detailing the accident. The incident report includes very important information that could make your case easier to prove. Sometimes, the company has their employees not only detail the facts of the accident but also whether the accident was preventable. The incident report often provides an unbiased assessment of the accident from an employee who has direct access to firsthand information, sometimes as it is unfolding. It goes without saying that a prudent litigator will identify the incident report and seek its production either voluntarily from the company or through court action.
If the incident report is damaging, the litigator can expect the company to put up fierce resistance. One tactic used by many defense attorneys is to claim that the document falls under the attorney client privilege, as it was produced in anticipation of litigation. If this happens, one will have to ask the court in which the matter is being litigated to issue an order compelling the defendant to disclose the incident report. A lawyer well informed about the law can probably show various fallacies in the defendant’s argument of privilege and obtain the discovery order.
The landmark case of D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723 details 11 basic principles to be applied in determining whether the attorney- client privilege exists in a corporate setting. (Id. at pp. 736-738.) For our purposes, where a corporate employer requires that its employees make a report, the privilege of that report is determined by the employer’s purpose in requiring the report. (Id. at p. 737.) Moreover, when the corporate employer has more than one purpose in requiring the report, the dominant purpose will control. (Ibid.) To prove privilege, the dominant purpose must be transmitting the report to the employer’s attorney. (Ibid.)
Because the test hinges on the dominate purpose of the document, it is crucial to obtain from the defendant the policy behind the making of the incident report. What one will often find in the policy is that the purpose is not litigation but actually accident prevention. Further, if the company has a policy of creating an incident report after every accident, one could argue that anticipating litigation after every accident is not reasonable. Minor accidents happen all the time, and there is no ligation. So, if the policy is to generate an incident report after every accident, then that disproves the assertion that the dominate purpose is anticipation of ligation. Other arguments more particular to the circumstances can be crafted, and an attorney well versed in the law will be able to compel the incident report in most circumstances.
At Kashfian & Kashfian, LLP, we have experience in compelling incident reports, and as your counselor, we will fight vigorously to obtain an incident report in your case. Contact our offices to learn more about the services that we provide.
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