Do you consider some or all of your accident investigation files to be privileged? Perhaps, your attorney reasonably explained that your files are protected from disclosure because you are performing the investigation under direction of counsel and in anticipation of the litigation that is sure to follow. You probably expect that your communications with counsel are protected, too.

Under the attorney work product doctrine and attorney-client communication privilege, those are generally the rules. But, the devil is in the details. In one recent case, MSHA successfully obtained an order from Administrative Law Judge Margaret Miller to crack open those mine operator files. The Judge found that these were routine files kept in the normal course of business under the mine operator’s safety policies and MSHA regulations requiring investigations. She also ruled that communications between attorney and client that contained factual information must be produced with redactions.

Read a more detailed summary and the Judge’s opinion here.