Ex parte Schnitzer Steel Industries, Inc. Alabama Supreme Court, September 27, 2013
(In re: Jason Jackson, et al v. Schnitzer Steel Industries, Inc., et al.)
The Alabama Supreme Court reversed a trial court decision on the discoverable nature of an internal investigation commenced by Schnitzer Steel after Jason Jackson suffered a work-related injury resulting in the loss of his leg. Schnitzer Steel refused to produce a report generated by their internal investigation initiated after Jackson's accident, citing the attorney work-product doctrine.
The controversy focused on whether the internal investigation, and the report generated therefrom, was commenced in anticipation of litigation. Jackson argued that Schnitzer Steel's Safety Director testified in her deposition that the investigation and report were prepared in the normal course of business to address safety concerns, and thus not protected by the attorney work-product doctrine.
However, Schnitzer Steel's Workers' Compensation manager testified by affidavit that the post-accident report was prepared, in part, in anticipation of litigation, considering the nature of the facts surrounding Jackson's accident and injury. The particular report generated by the Jackson investigation was forwarded to in-house legal counsel for Schnitzer Steel, who contributed to the report before it was finalized.
The Court cited their previous ruling in Ex parte Alabama Department of Youth Services, 927 So.2d 805 (Ala. 2005), "The question as to whether the investigative reports are work-product when there are several motivating causes, other than anticipated litigation, for preparing them turns on whether it was reasonable for DYS to assume, in light of the circumstances, that litigation
could be expected," (emphasis added.)
Ultimately the Court found that anticipation of litigation was not Schnitzer Steel's sole motivation to investigate and prepare a post-accident report, but, it was a significant factor in their decision to have the report prepared. The Court relied on the fact that the report was not finalized until after review and revision by in-house counsel, which was not normally done in the regular course of business, and that a claim for workers' compensation benefits was initiated prior to the investigation.
The Court concluded that "there may have been 'several motivating factors, other than anticipated litigation, for preparing [the report],' but 'it was reasonable for [Schnitzer Steel] to assume, in light of circumstances, that litigation could be expected." The trial court was directed to vacate its order granting plaintiff's motion to compel discovery of the post-accident report, and enter an order denying said motion.