It is not uncommon for workplaces to have some standard procedure for documenting accidents or other abnormal situations that may arise in the course of business, such as a slip and fall at a grocery store or a medical procedure that did not go according to plan. These “incident reports,” usually created immediately or soon after the event took place, can be a useful tool for litigators to understand what happened, the conditions at the time, and any immediate action that followed. But are these reports discoverable records created in the course of business or protected work product created in anticipation of litigation? States approach this question differently.
In New York, to successfully assert privilege over an incident report, the report must have been prepared for the “sole purpose of litigation.” Agovino v. Taco Bell 5083, 639 N.Y.S.2d 111, 112 (App. Div. 1996). This means any mixed-purpose documents or any documents prepared in the ordinary course of business are discoverable. Id. New York courts have even said that a document prepared in the ordinary course of business according to regular business policies and practices is discoverable even if the “sole motive behind those business operations or practices is litigation.” Goldstein v. N.Y. Daily News, 482 N.Y.S.2d 768, 770 (App. Div. 1984). Thus, it seems, for the work-product doctrine to apply in New York, the incident report must have been prepared for the sole purpose of litigation outside any regular business practice.
Conversely, in California, “[w]hen the corporate employer has more than one purpose in requiring the report, the dominant purpose will control.” Scripps Health v. Superior Court, 135 Cal. Rptr. 2d 126, 128 (Ct. App. 2003). For example, in Scripps, the court determined that incident reports prepared at the direction of an employer were protected because the reports were created “primarily” for “attorney review” even though they were also ”used by the risk managers as de facto insurance claims handlers.” Id.at 130. Compare to the New York case mentioned above, Agovino, however, that says “when statements are given to a liability insurer's claims department as part of an internal investigation or for internal business purposes, as well as for defense purposes, they are not immune from discovery as material prepared solely in anticipation of litigation.” 639 N.Y.S.2d at 112. Accordingly, in California, reports can be prepared in the ordinary course of business and still be protected by the work-product doctrine, so long as their primary purpose was related to the defense of anticipated litigation.
In Florida, it is well established that “even a report that is routinely prepared may still qualify as work product.” Millard Mall Servs. v. Bolda, 155 So. 3d 1272, 1275 (Fla. Dist. Ct. App. 2015). Unlike California, Florida does not consider the “dominant” purpose of the report when determining whether it is discoverable, rather Florida courts seem to merely consider whether a report is or is not made in anticipation of litigation without weighing that purpose relative to any other. See Dist. Bd. of Trs. of Miami-Dade Cmty. Coll. v. Chao, 739 So. 2d 105, 107 (Fla. Dist. Ct. App. 1999) (holding that distributing an incident report to multiple departments for purposes other than litigation defense does not destroy privilege without consideration given to the primary purpose of the document).
Clearly, the analysis of whether incident reports constitute protected work product made in anticipation of litigation or a discoverable record made in the ordinary course of business varies from state to state. Thus, while incident reports can be important sources of information, it is worth considering the rules of the relevant jurisdiction before seeking them or attempting to withhold them as privileged.