Claims investigations and incident reports are a crucial element for any corporate defendant in tracking potential future claims as well as documenting trends for risk analysis. Opposing attorneys often seek to obtain this information in the hopes it may provide valuable information and first impressions that counsel can then use against the insured in the course of litigation. The First District Court of Appeal recently handed down an excellent decision in which the court not only refused to permit disclosure of an insured’s claim investigation but also provides valuable insight to corporate defendants to successfully protect their claims investigation analyses in the future.

In Heartland Express, Inc. v. Torres, 37 Fla. L. Weekly D1503a (Fla. 1^st DCA, June 25, 2012), Plaintiff sued Heartland Express in a negligence action arising from a traffic accident. Plaintiff took the deposition of Heartland’s corporate representative, and in the deposition sought information that clearly would have been obtained during the initial claims investigation. Heartland’s counsel instructed the representative not to answer questions such as “Was a final determination made that the accident was preventable?” The trial court granted Plaintiff’s counsel’s motion to compel responses to the questions pertaining to the accident investigation.

On appeal, the First District Court of Appeal first noted that orders erroneously compelling discovery of privileged information were reviewable by certiorari (appeal prior to issuance of final judgment) due to the potential for causing irreparable injury. The Court held that “work product protection extends to information gathered in an investigation conducted in anticipation of litigation by corporate non-attorney employees.” Id.    In citing several supporting cases, the Court also noted that information gathered prior to suit being filed, or even the filing of a claim, does not lose its work product privilege. The Court had no problem in concluding Heartland’s risk manager’s analysis of the claim was not discoverable, nor was it error for counsel to instruct the witness not to answer those questions. The Court also expressly noted that Plaintiff’s counsel did not make a showing of need or undue hardship, which can permit compelling disclosure of work product information under certain circumstances.

Key points to take away from the Heartland decision are:

• Incident reports and information gathered from claims investigations can be protected as work product;
• Even information or documents gathered presuit or prior to filing of a claim can and should be protected if done in anticipation of litigation;
• Work product protection for claims investigations does not simply apply to investigations by attorneys or risk management professionals, but to any employee gathering information for anticipated future litigation; and,
• Ensure employees (both managerial and associate level) are advised that one of the purposes of submitting information in incident reports or as part of the investigation process is to defend against potential litigation.