Under the so-called “work product” doctrine, documents prepared in anticipation of litigation are usually privileged and cannot be seen by the opposing party. However, documents that are prepared for some business purpose other than anticipation of litigation are not covered, and can be seen by the opposing party. A recent decision by the Georgia Court of Appeals may make certain internal investigations discoverable in certain situations.
In the case of Alta Refrigeration, Inc. v. AmeriCold Logistics, LLC, 301 Ga. App. 738 (2010), the Court ruled that an internal accident investigation was not privileged, and was therefore discoverable by the opposing party. The Court held that because under company policy, an investigative team had to be appointed within 48 hours of the incident to comply with OSHA regulations, and a report had to be issued at the conclusion of the investigation, the investigative report prepared under that policy was not primarily prepared in anticipation of litigation but was for the business purpose of compliance with regulations, and therefore was not privileged.
Because it can be important to conduct internal investigations in an atmosphere that engenders complete candor, businesses may wish to speak to counsel about how to structure their internal investigation protocols to ensure that the purposes of thoroughness and candor are met. For more information about this case and confidentiality privileges in Georgia, please contact Andy Thompson.