Legal Case: Understanding the Work Product Doctrine: Are your Records Protected?

Bad event. Write it up? Maybe not. A quality operation records near misses and loss-causing events and may collect witness statements and other materials pertaining to the occasion. Some organizations do this as a matter of policy and practice, so that management can understand what happened (or almost happened), determine how to reduce the chance of it happening (again), and, perhaps, determine whether the organization has an obligation to compensate persons affected. Other organizations record such events only, or primarily, in anticipation of having to defend a lawsuit arising from the incident or related to the near miss. The more likely a claim, the more likely a record will be made.

Responsible leaders are confused about the vulnerability of any such record to discovery by an adversary in a law suit and how any such vulnerability might influence what is recorded and how. Some lawyers, in fact, have been known to discourage the maintenance of any kind of record of an event, for fear that it will increase an organization’s exposure to claims and liability—or at least greatly simplify the task of the opposing lawyer. In the latest case at The Recreation Law Center by Reb Gregg and Catherine Hansen-Stamp offers a window into application of the "work product" rule as a vehicle to protect incident and accident reports, e-mails and witness statements from discovery by the opposing attorney in the context of a lawsuit.

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