Protecting Privilege in Post-Accident Investigations

Companies that self-investigate incidents involving their products or services often assume that their investigations and the resulting information and reports are privileged and protected from disclosure in any subsequent litigation. However, courts are increasingly scrutinizing companies’ privilege claims over post-accident investigations.

A trial court recently held that the attorney-client privilege did not protect a corporate paralegal’s post-accident investigation in a lawsuit resulting from a Segway accident. A federal district court ruled that the “mere possibility” of future litigation is not sufficient to protect documents created during a trucking company accident investigation under the work product doctrine. And courts are divided on whether to recognize a self-critical analysis privilege; the Illinois Supreme Court recently refused to recognize a common law self-critical analysis privilege.

These cases provide an instructive privilege roadmap for litigators. They illustrate that simply claiming privilege is not enough to protect the information created during a post-accident investigation. Counsel must be prepared to demonstrate that every step of the post-accident investigation was conducted because potential litigation was a substantial possibility.

Listen as our authoritative panel of legal specialists examines the privilege issues that arise when companies self-investigate accidents or incidents involving their products or services. The panel will review recent court rulings on attorney-client privilege, self-critical analysis privilege, paralegal investigations and the work product doctrine, and offer strategies for protecting post-accident investigative reports from discovery.

1. Business advice vs. legal advice
2. Discoverable facts versus privileged communications
3. Best practices and policies for conducting post-accident investigations
4. Arguing against discoverability of post-accident investigation reports
5. Review of recent court rulings

The panel will review these and other issues:

• How can counsel bolster the assertion that an investigation was conducted in anticipation of litigation?
• How can counsel help companies develop post-accident investigation policies that will protect potential work product?
• What are potential arguments for excluding post-accident investigation reports in subsequent litigation?