Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a post-accident investigation was motivated by anticipated litigation rather than conducted in the ordinary course of their business?

In Sperber v. Mercy Regional Health Center, Case No. 14-1331-EFM-GEB, 2016 U.S. Dist. LEXIS 22664 (D. Kan. Feb. 24, 2016), the court denied work product protection for defendant's incident report following a slip and fall accident. The court cited the incident report's author, who admitted preparing the report "before talking with a risk manager or attorney" – thus demonstrating that she "prepared her portion of the report in the usual course of business." Id. at *7. The court also reviewed the incident report in camera before denying defendant's work product assertion.

Courts assessing post-accident investigations usually examine their context (described in testimony or affidavits) – and sometimes read the withheld documents in camera. The next Privilege Point focuses on a medical device company's successful work product assertion for a post-accident investigation.