The process of fact-gathering is a crucially-important part of any defense effort in a product liability action. Unfortunately, in most situations, the plaintiff starts the contest far ahead, since she (and her counsel) usually have first knowledge of the incident and the earliest opportunity to obtain the relevant documents and access to the percipient witnesses. Most defendants find themselves in an unenviable “catch-up” position – in many cases years after the events.
Most successful plaintiff’s lawyers and law firms use the services of experienced private investigators, many of whom have law enforcement backgrounds. Those individuals are skilled in locating documents or electronic communication as well as individuals who may have witnessed the events. The result of their work is that plaintiff’s lawyers are frequently close to having their cases trial-ready by the time the defendant is served with the summons and complaint.
How does a defendant go about catching up with his adversary? One method that is not always at the front of defense counsel’s thinking is to demand production of the plaintiff’s private investigator’s reports and other work-product. Many defense lawyers assume that this information is protected by the attorney-client privilege or the related work-product immunity, so that the effort is a waste of time. As will be shown, this is a mistake, and making it may deprive the defense of a trove of useful information.
Consider this example. A plaintiff is injured at her workplace while using a tool that has been provided by her employer. She retains counsel to assist with a worker’s compensation claim, and counsel immediately recognizes the prospect of a product liability claim against the tool’s manufacturer and/or distributor. The employee’s counsel quickly engages her favorite private investigator, who also quickly interviews the witnesses to the incident and obtains reports prepared by the plaintiff’s employer and by first responders. By the time suit is filed against the manufacturer or distributor months or years later, plaintiff’s counsel has had the benefits of her investigator’s initial work, as well as any appropriate follow-up. The information uncovered might, for example, include the fact that the plaintiff’s employer had altered the tool in question by removing a protective device or a warning.
It then falls to defense counsel to conduct his own inquiry, but the savvy defense lawyer will also explore what plaintiff’s investigation has uncovered as well. This is accomplished in the first instance by a document request or interrogatory, targeted to some basic information such as the names of any person conducting the investigation or interviewed by the investigator and the nature and source of any documents located. These requests will almost certainly be met by objections on the basis of the attorney-client privilege or work-product immunity. If this happens, a few basic points are worth remembering.
First, the fact that an investigation has been conducted, as well as its general contours, is not privileged. In most jurisdictions, the plaintiff is obliged to disclose:
- When the investigation was conducted;
- Who conducted it;
- The names and addresses of anyone interviewed; and
- A general description of any documents obtained.
Once this information is in hand, defense counsel is in a better position to assess prospects of forcing his adversary to produce all or a portion of the investigator’s work.
Second, the attorney-client privilege protects only communications between a lawyer and her client that are made expressly to obtain or receive legal advice. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190 (2012); see also Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 392 (2013). In limited circumstances, communications between counsel and third parties, such as investigators, may also be protected, but many plaintiffs’ lawyers do not bother to erect the appropriate protections, or simply forget to do so. See United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961); Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009).
Third, the work-product doctrine protects materials prepared by counsel, or counsel’s agent, “in anticipation of litigation.” McCarthy, 463 Mass. at 194. In most jurisdictions, this protection extends to the work of an investigator retained by counsel. Ortiz v. Worcester, No. 4:15-cv-40037-TSH, 2017 WL 1948523, at *4 (D. Mass. May 10, 2007). Importantly, this protection does not extend to the development of facts. Id. at *2. So in the example mentioned above, defense counsel is arguably entitled to know whether the plaintiff’s investigator discovered that some months prior to the incident the tool at issue had been altered by the plaintiff’s employer. This potentially outcome-determinative fact must be disclosed, even if other features of the investigator’s work need not be.
Fourth, the plaintiff’s investigatory materials may be subject to disclosure notwithstanding the work product doctrine, where defense counsel can demonstrate a “substantial need” for the materials and an inability to obtain “equivalent” materials by other means. See Cahaly v. Benistar Prop. Exch. Tr. Co., Inc., 85 Mass. App. Ct. 418, 425 (2014). “Substantial need” can be demonstrated when the material at issue is “central to the parties’ substantive claims.” Id. In the example mentioned here, evidence of the tool’s pre-accident alteration is most certainly “central” to the defense. Accordingly, defense counsel may have a compelling argument to require disclosure of plaintiff’s investigative materials, where the plaintiff has had access to the accident scene and to witnesses who have become unavailable to defense counsel or who are unwilling to cooperate. Some defense lawyers avoid making this attempt for fear of receiving a reciprocal demand from plaintiff’s counsel, but as is readily apparent, a plaintiff’s demand is far less compelling.
A final consideration for defense counsel is whether or not the plaintiff has waived any protections by disclosing the contents of the investigatory materials to third parties. In the example under discussion here, plaintiff’s counsel may have disclosed all or a portion of the investigator’s work to the worker’s compensation insurer, which arguably constitutes a waiver of any applicable privilege. Ortiz, 2017 WL 1948523, at *4.
Of course, none of this is a substitute for a thorough defense investigation. But given how uneven the playing field is in most situations, the defense steps mentioned here are worth serious consideration in every case.