Be Careful What You Put In Writing: Preparing Your Incident Reports
All construction companies throughout Washington and Oregon have (or should have) detailed safety plans. In case of an injury, property damage, or a near miss on a jobsite, most safety plans include a standard accident or incident report that is filled out by the foreman or superintendent and includes information about the injury, cause, findings, or any disciplinary actions. Depending on the severity of the incident, the report may be reviewed by a manager, signed, marked as “confidential,” and filed away in a drawer.
But what if your company becomes heavily entrenched in litigation regarding that incident or even something related to the incident? Is your company’s incident report discoverable in a court dispute? In other words, if someone sues you because (s)he was injured on your jobsite, can (s)he compel you to hand over copies of your company’s incident reports and use them against you in a lawsuit? The answer every business owner hates to hear from their lawyer: it depends.
Whether you have to disclose the incident report to the opposing party depends on whether the document is deemed “work product” under the Work Product Doctrine—regardless of whether the document is marked “confidential.” If the incident report is determined to be “work product” then you don’t have to produce it to the opposing party.
Most incident reports are not work product—they are prepared irrespective of the risk of litigation. It is important for construction companies to understand that even labeling an incident report as “confidential” generally will not prevent it from being discovered in a lawsuit. Thus, companies need to control what is written in the report, not necessarily who gets to see the report. It is also important to understand what work product is and to know that some incident reports may be protected under the work product doctrine.
What is the Work Product Doctrine?
The Work Product Doctrine is a judge-made law affecting the production of documents and codified under the Federal Rules of Civil Procedure (Oregon and Washington have similar state laws). Under the federal rules, work product is “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”[1] To be considered work product, the incident report has to be (1) documents or tangible things, (2) prepared by a party or its representative (lawyer), and (3) in anticipation of litigation. The party claiming work product has the burden to show that the document meets these three elements.
Generally, it’s easy to show that an incident report is a document and is prepared by your company, so the real issue is whether the report was prepared in anticipation of litigation and not in the ordinary course of business.[2]
Many incident reports are standard operating procedure, performed in accordance with a company’s everyday business. Often a company’s safety plan will specifically outline what the incident report must include, such as details of the incident, causes, findings, and measures taken to avoid future incidents. The reports are intended to help employers learn the root causes of the incident and to correct any deficiencies on future projects—not give ammo to an opposing party.
As the result of these safety plan policies, many incident reports are not protected as work product. For example, in Leviathan, Inc. v. Alaska Maru,[3] a ship had what they thought was a near miss with another vessel, but continued to proceed to its destination in Portland, Oregon. When the ship arrived in Portland, the captain, pursuant to company policy, filled out an incident report and sent it to the ship’s owner. In actuality, the ship had collided with the other vessel. Months after the collision, once the other vessel’s owner could determine to whom the ship belonged, the vessel owner sued the ship’s owner. The ship’s owner argued that the captain’s incident report was protected under the work product doctrine. The court determined that the captain prepared the report in the ordinary course of business because it was prepared months before the ship’s owner was notified of the potential litigation.
Many construction incident reports are prepared in the ordinary course of business, as part of the company’s safety plan or policy and would be prepared the same way regardless of the risk of litigation. Sometimes these standard incident reports contain details and information that can be harmful to your company’s case if a lawsuit is filed. Thus it’s important to have the proper procedures in place and to train your workers who have to prepare the incident reports to only document the facts of the incident.
There are, however, other reports that may be protected under the work product doctrine. For example, if there is a fatality on a job site and the general contractor decides to bring in a third party to perform an investigation of the incident to help the company determine causation and the risk of litigation, that report may be protected under the work product doctrine.
How Can You Protect Your Company?
While it’s important to document your incidents (and required for some types of injuries by WISHA or Oregon OSHA, you should always keep in mind when preparing the incident report that it may be discoverable in litigation. Train those employees who are filling out the incident reports to stick to the facts and leave out any opinions or conjecture.
For example, “Tom stepped on a nail, which punctured his foot and he had to go the doctor” is much different than “Tom stepped on a nail, which punctured his foot. Billy constantly has nails falling out of his bags, so I think it came from Billy’s bags and that’s why Tom had to go to the doctor.”
Once prepared and signed, that incident report is forever memorialized in writing and, in the event of a lawsuit, will probably be seen by the judge and jury—who will judge you accordingly for it.
Other methods for protecting your company’s incident reports depend on your company’s situation. You should consult an attorney to see if there are other ways to protect your confidential documents—not just incident reports—from discovery in litigation.
[1] Fed. R. Civ. P. 26 (b)(3)(a).
[2] In re Detention of West, 171 WN.2d 383, 256 P.3d 302 (2011).
[3] 86 F.R.D. 8 (W.D. Wash. 1979).
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Author: Paige Spratt