You have a serious construction accident case and the question is, as I have pondered in the past blogs, how do you go about establishing or proving liability on the part of the general contractor or another subcontractor? Again, the injuries can be varied and, unfortunately they are often severe. They can happen as a result of any number of reasons: unguarded stairway, unsecured plywood over a hole, or a fall from a roof. They can be an injury relating to a scaffolding improperly constructed or assembled or a fall from a ladder. They can relate to hazardous materials or vehicular accidents or accidents where objects have fallen from a higher level onto your client. They are as varied as the number of actors or activities.
Let’s look at sources of information, some case specific and some from overall data, compiled by OSHA and private organizations. OSHA is very good about giving you the number of accidents that have occurred and they will categorize the different types of accidents. They also compile them by year. This is something that can lead to a number of questions. You can ask the defendant about their responsibility to avoid that type of accident. And, in general, are they making safety a priority? What about the accident report that was completed for this accident? Certainly any construction entity knows that if there is an accident, no matter how serious, there should be an accident report form completed. I am not talking about a relatively short or terse statement to OSHA, such as their Form 300. Rather, I am speaking about a detailed description of how the accident happened, who the players were, who saw it, how it was believed to have occurred, and anything else pertinent.
We lawyers for the injured party will point out that the accident report is not done in anticipation of litigation. Rather it is done in the ordinary course of the construction company’s business. As such, because it is done in the ordinary course of business, it is discoverable. That means that what they filled out close in time to the accident should indeed be made available to you, the plaintiff’s lawyer. This report should contain a wealth of helpful information as incident reports from any number of types of accidents often do. Otherwise, the defendants wouldn’t be so jealous about guarding them from being turned over to the other side. (Indeed, sometimes it takes a court order to compel the production of such reports.) Not only should the accident report form be discoverable, I would argue that any emails and conversations that were held in the short period of time after a serious accident, especially a serious accident, should likewise be discoverable. That will go a long way to letting you know the true state of mind, the true feelings, of the construction entity being sued. Those statements and the accident report as well as emails and conversations, all held within a short time of the accident, will be made before any of the opposing players have been “lawyered up.”
When a Judge has to intervene to order the production of these items/documents/ or even conversations, your lawyer should be prepared to argue why they are not privileged. One argument that I especially like to invoke is if the other side has already produced documents relating to prior accidents. (Often they will produce them because they think the prior accidents are very different from what is being sued upon in this instance.) If they have done that, shouldn’t they likewise make available their investigation of this particular accident? If the other documents were discoverable -and readily produced by them- isn’t the argument the same, for they claimed no privilege in readily producing those documents. Of course, had they considered the implications of producing documents on those seemingly unrelated accidents, they might not have done so.
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