Allen & Gooch Blog

General Liability

Discoverability of Accident Reports

In a previous blog articles, 10 Items to Preserve After an Accident in a Company Vehicle and Best Practices for Documenting Slip and Fall Accidents, I discussed the importance of preserving information after an accident and creating accident reports. However, it is important to note that your reports may be discoverable by the adverse party. In order to prevent discovery, the report must fall under Louisiana Code of Civil Procedure Article 1424.

  1. The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

Louisiana Code of Civil Procedure art. 1424

The party seeking to avoid discovery bears the burden of proof that the documents were drafted in anticipation of litigation. Once the party seeking to prohibit discovery meets their burden, the party who seeks discovery may still obtain the documents by a showing that 1) there is a substantial need for the materials in the preparation of his case and 2) he is unable to obtain a substantial equivalent of the materials by other means without due hardship.


Fact Intensive Inquiry Can Result in Inconsistent Rulings

The cases interpreting which documents are protected under this article are sometimes seemingly inconsistent and turn heavily on the facts of the case. For example, contrast the below Fourth Circuit cases:

Simmons v. Transit Management: A report prepared by a non-lawyer as a matter of company policy regardless of whether or not a lawsuit was anticipated was not “in anticipation of litigation”.

Johnson v. Mike Anderson’s Seafood, Inc.: A report prepared by a non-lawyer after notice of a subrogation claim which included the adjuster’s opinion regarding legal liability, the adjuster’s opinion regarding the law and the amount of insurance available to pay the claim was “in anticipation of litigation”

Best Practices to Prevent Discovery of Accident Reports

If you are concerned that an accident report will be discoverable, some of the below actions will increase the likelihood that it is protected:

1) If possible, have the document prepared by either an in-house attorney or outside counsel.

2) If the document was not drafted by an attorney, memorialize the report as correspondence to in-house or outside counsel.

3) Specify that the document is prepared in anticipation for litigation and the reasons why litigation is anticipated. For example, the more severe the damage or injury, the more likely that litigation will follow. In such cases, cite the severity of the injury and the likelihood of litigation as a motive for creating the document.

4) If the document was drafted by or to an attorney, do not share the document with third parties such as OSHA.

5) If the report is created after notification from a lawyer or a threat of a lawsuit, note that communication as a reason for the document.


Always remember that even if a document falls under the above privilege, a Court may still order that it be produced in some circumstances. For example, in Ogea v. Jacobs, the plaintiff suffered a traumatic brain injury and was unable to recall details of the accident. Similarly, the company executive was unable to recall key facts regarding the accident at his deposition. Under these circumstances, the Supreme Court found that an accident report written days after the accident including witness statements and opinions regarding liability was discoverable.

In summary, there are some things you can do to help increase the chance that an accident report is protected from discovery. However, there are no guarantees. As such, unnecessary comments such as disparaging comments regarding the Court or Counsel should never be included. (ex. “This accident happened in Jonesville and all the judges there are terrible so we should settle immediately.”) If you have questions about the contents of an accident report, contact your attorney to discuss your concerns.


Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.