Many clients will face a crisis during the course of your representation. In the immediate aftermath of a crisis, you will need to ensure that employees remain safe, preserve critical evidence, and investigate what happened to avoid a recurrence; but, you also will be preparing for potential litigation and developing strategies to minimize the company’s liability. One of the crucial first steps is to ensure you have the appropriate experts investigate the scene and preserve evidence. In doing so, you must consider whether a particular expert’s findings and communications will be privileged or disclosed; and, if you may wish to keep them privileged, you must ensure you have taken the proper steps to do so. You also must consider whether that expert may later be designated as a testifying expert and, if so, whether an expert report may be required for any ensuing litigation.
Preparation and Disclosure of Investigation Reports and/or Rule 26 Expert Reports. Accident investigations may be conducted by in-house experts, outside experts, or both. If an expert prepares an investigation report, the discoverability of that report depends on a number of factors. First, if the investigation report is disclosed to a third party, such as a governmental entity who also is investigating the matter, the report is not privileged. Second, if the expert who prepared the report is designated in the litigation to be a testifying expert, the report likely will be discoverable.
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