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Company's post-accident investigation report protected from discovery

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Because an employer reasonably anticipated a lawsuit might result from a workplace injury, the company's post-accident investigation report is protected from discovery, Alabama's Supreme Court ruled Friday.

The ruling in Ex parte Schnitzer Steel Industries Inc. follows from a 2008 accident at a metal recycling facility that caused worker Jason Jackson to have part of a leg amputated. Schnitzer Steel conducted a post-accident investigation, according to the court's unanimous ruling.

Mr. Jackson filed a workers compensation claim and he, along with his wife, also filed a civil lawsuit.

A trial court eventually granted the plaintiffs' request to compel Schnitzer Steel to produce the post-accident report. But the employer appealed to Alabama's high court, requesting that it vacate the lower court's order compelling production of the report.

In its petition to the Supreme Court, Schnitzer Steel argued that because it prepared the report in reasonable expectation of litigation, the work is protected from discovery under a “work product doctrine.”

A Schnitzer Steel workers compensation manager testified that he report was prepared in anticipation of litigation.

The plaintiffs, however, argued that the testimony of a company safety director showed that Schnitzer Steel prepared such reports to uncover safety concerns. Therefore, they are prepared in the normal course of business and not in anticipation of litigation, the plaintiffs argued.

The Alabama Supreme Court found that the evidence indicated that although anticipation of litigation may not have been the employer's only reason for preparing the report, it was a significant reason for producing it.

“There may have been several motivating causes, other than anticipated litigation, for preparing the report," the court said. “But it was reasonable for (Schnitzer Steel) to assume, in light of circumstances, that litigation could be expected. Therefore, we agree with Schnitzer Steel that the report is protected work product.”

The high court held that the trial court exceeded its authority when it ordered the employer to produce the report and granted Schnitzer Steel's petition to direct the trial court to vacate its order.