Company car accident reports can be essential to changing the way a case turns out. An accident report has the power to change what may have been heading straight to litigation, to a settlement agreement in just a matter of days. Why? Well the answer is simple, the information provided in accident reports is a potential gold mind: i.e. party admissions from the defendant. However, getting the accident report is not so simple.
It is clear as to why a company would want to keep their accident report secret, and if they are keeping it a secret, usually there is something YOU should know in the report. So, in order to elevate yourself from simply being a good attorney to being a great attorney, get that accident report.
Step 1: Figure out if an accident report exists:
To figure out if an accident report exists, the easiest way to do this is to ask for it in the very first request for production. Be aware, the language used in this request must be specific in order to avoid the boilerplate objections of “overbroad, vague and ambiguous.” For example, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT,” is likely a sufficient request. However, knowing company attorney’s, the accident report is still likely to remain in their possession because the company will claim that the document flows from the work product doctrine or is privileged. Being a great attorney is foreseeing such a consequence as this. As such, your last request for production should demand a privilege log in the event that the opposing counsel withholds any documents or other information based on a claim of privilege, work-product, or otherwise.
In the alternative, you can ask for a request for production of documents with a notice of a deposition of the defendant employee and the defendant’s person most qualified. If you do this, it is important to ask, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT and the purpose(s) of those reports.” Remember to meet and confer and subsequently file a motion to compel if opposing counsel persists on not providing the documents. The request for the purpose of those reports will be useful in creating an argument against work product and privilege in order to get the documents you need released.
Step 2: If an accident report does exist, must the defendant produce it?
As with most things in the law, the answer is that it depends. If it is under the work-product doctrine, the document itself must “reflect” an attorney’s impressions, conclusions, research, etc. Usually, an accident report is reported by a supervisor or an employee. These people are non-lawyers and thus necessarily do not fall under the work product doctrine. This is something that is essential to discover to assist in a motion to compel.
Secondly, California follows the “Dominate Purpose” test to determine if a document is privileged. This is specifically discussed in D.I. Chadbourne, Inc. v. Superior Ct., (1964) 60 Cal.2d 723. If the dominate purpose of the document is not necessarily for litigation, then it does not likely fall under privilege. For example, it the main purpose of the document is to prevent an accident from happening again, its dominate purpose is not likely for litigation but for safety. Furthermore, if a company uses an accident report every single time there is an accident, it is likely as a safety precaution rather than litigation purpose. However, a document may have multiple purposes. If that is the case, your job is to get testimony and argue that the dominate purpose of these documents is not for litigation, but rather for some other purpose. Find that purpose!
Step 3: Get the Testimony to Help You in Your Motion to Compel.
This can be trying, but with skill and technique you will likely get what you are looking for out of the defendant employee of the person most qualified. There are a number of different ways to do this. I suggest always starting with the first route I will provide here, and the second and third steps can differ depending on your case.
First, confirm with the witness you are deposing that an accident report actually exists. Then, ask whether they reviewed the report to prepare for their deposition. Next, ask if reviewing the report refreshed their memory. If they answer yes to these three questions, Evidence Code section 771(a) is enacted which provides in part, “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party.” After this testimony, meet and confer and ask if the document will be produced in light of the testimony. Make sure to specifically cite to this Evidence Code. Likely the answer will be no, but they will have no legal basis for their argument.
If a document exists, but the answer to the latter two questions aforementioned is no, then it is important that you get testimony that debunks the argument that the accident report falls under the work product doctrine or is privileged. To do this, it is important to first lead the witness into the questioning to ensure that their mind is in the right place to get the answers you are looking for. For example, beginning a conversation on the importance and practice of safety in the workplace will likely get the witness on the track to thinking that the dominate purpose of the document is to protect safety. Thus, when you later ask what they believe the “dominate purpose” of the accident report is, they will likely provide you with the answers you desire.
Once you have lead the witness into your questioning, start with who prepared the document. It is easy to discern and debunk the work-product doctrine, especially if no attorney prepared it. Next, move into the dominate purpose. Ask questions such as: “does your company always fill out accident reports?; do they look after safety?; how do they train you on safety?” The more you can find a main purpose for the report rather than litigation; the easier your job will be when filing a motion to compel.
After you get the information you need, meet and confer in light of new evidence, then write your motion to compel.
When your motion to compel is granted, your whole case can change. The accident report can change what would have been a trial to a settlement much higher than expected. It is your job to be zealous, competent, and diligent for your client. As such, staying up to date on tricks like the one discussed in this blog will provide you with an advantage and a means to fulfill your duties.
For a more detailed analysis on this issue See:
Andrew Owen, The advocate Magazine 24-31, (April 2018).