Florida Injury Attorney

Plaintiff in an Injury or Wrongful Death Lawsuit May Be Able to Obtain Incident Report

When a person is injured or killed in an auto accident, the police and/or traffic homicide detectives will prepare a report based on their investigation of the crash. That report will be readily available to the personal injury or wrongful death attorney representing the plaintiff who has filed a claim or lawsuit for damages. However, in some injury or wrongful death cases, the resulting incident report is not as easy to obtain. For instance, when the injury or death occurs at a store or other place of business, at a hospital or at a nursing home, the owner or an employee may prepare an incident report with crucial details about how the incident occurred. After a claim for injuries or death is made against the company or a lawsuit is filed, the representatives and lawyer for the company may refuse to provide that report to the plaintiff’s attorney. They may claim that the report is protected by the work product privilege which provides that a party may refuse to produce documents that were prepared in anticipation of litigation after such an incident. In other words, after an accident resulting in injuries or death, the report prepared by the company may be prepared with the idea that a lawsuit will follow so that report is privileged information that can remain confidential.

Assuming the report is considered privileged and the lawyer for the defense in a personal injury or wrongful death lawsuit refuses to produce it, there are ways for the plaintiff’s lawyer to overcome the privilege and obtain the report. This work product privilege can be overcome if the plaintiff’s lawyer can show that the plaintiff needs the information in the report and the plaintiff cannot obtain such information without undue hardship. For instance, if the report has important information about the incident and what caused it, the first part of the test can be fairly easy to establish. However, how does the plaintiff’s lawyer establish that he/she cannot obtain the information from another source without undue hardship? One or more of the following factors might help: if the report contains information about the incident that only the company employees would know yet they are not available or unreliable for whatever reason, if there were no other witnesses to the incident other than company employees have since died or cannot be located, if the plaintiff was injured to the extent that he/she cannot recall the events surrounding the incident or the victim died as a result of the accident. Those are some scenarios where the plaintiff’s attorney can establish a need for the information and an inability to obtain the information any other way.

Companies and their lawyers will often refuse to produce an incident report that has important details about the incident and subsequent injuries or death that would be helpful to the plaintiff. There is a privilege that may allow the company lawyer to refuse to produce the report, however, there are also effective legal arguments that can overcome the privilege and force the defense lawyer to produce the report.