Back when I was an associate attorney, I remember when a client would catch a partner off guard by asking a question that revealed that the client was savvy to the legal arena. I think they knew that when you let everyone know that this isn’t your first rodeo, you tend to get better performances out of the hired help.
In that same spirit, let me share a few thoughts on accident and investigative reports that will help prime the pump for your next sit down with admiralty counsel. Typically, the hot issue with these reports arises in the litigation setting and concerns disclosure. That is, must you turn over a report to the opposing party, or is it protected from disclosure?
First, certain information and documentation may be protected from disclosure if it qualifies as being “privileged.” The party claiming the privilege must establish its existence, which is not always an easy task. Protection from having to disclose an incident report is often sought under a claim of work product privilege because it was information gathered in “anticipation of litigation.”
As you can imagine, the concept of when litigation was anticipated is generally not static. Whether or not you must turn over the report will depend on the specific facts of your claim. Documents prepared for a business or other non-litigation purpose will almost never be subject to a work-product privilege while a witness statement obtained by your attorney may likely be privileged.
Keep in mind, however, that even if a document is protected under a work product privilege, you may still have to turn it over to the other side. If the opposing party can demonstrate a substantial need for the materials and an inability to find an equivalent without undue hardship, it may be entitled to see it.
Still, this is a single snapshot of an important battleground in many lawsuits. If the courtroom is but a civilized duel, the smell of cordite and howl of waging opponents is heard in the thickets of these types of discovery battles. And, as in any battle, it is important that you have given some consideration to a strategy before you storm in.
