Whether Internal Investigation Is Required Deemed Irrelevant To Privilege Inquiry By Indiana Federal Court

In litigation involving two railroads’ responsibilities for separate train derailments, each railroad sought discovery of information protected by the other railroad as work product.  Although the document-by-document specifics are not ascertainable based on the generalized commentary from the U.S. District Court for the Northern District of Indiana following its in camera inspection, a few points made by the court are noteworthy.  The court reiterated that if in connection with an incident, a business entity conducts an investigation of the incident in the ordinary course of business for its own purposes, the resulting investigation report is produceable in discovery.  Similarly, the “fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an ‘in-house’ report as work product.”  The key is that the primary motivating purpose behind the creation of the document or investigative report must be to aid in possible future litigation.  The court stressed that the fact a company is not required to investigate has no bearing on the privilege issue and rejected an argument by one of the railroads that “because [the railroad] was not required to investigate why [the other railroad’s] train derailed, [the railroad’s] investigation into why [the other railroad’s] train derailed … was solely for the purpose of establishing [the other railroad’s] culpability for damages in anticipation of litigation and not as part of its post-derailment investigation.”

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