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Posted in Law on October 13, 2016   |  by Gary Burger

Discoverability of Accident Reports in Illinois and Missouri

When you are suing a Defendant business or corporation which has prepared an accident report in response to your client’s injury, it is important to know the laws of discoverability in both Illinois and Missouri.

Under Illinois law, the accident reports generated by a business or corporation in response to an injury must typically be produced by the Defendant. Most recently this was confirmed by a U.S. District Court in Northern Illinois in 2013. Applying Illinois privilege law, the judge ruled that accident reports prepared by hotel employees when a guest was injured did not qualify as protected material under attorney-client privilege or the work product doctrine. Nelson v. Intercontinental Hotels Group Operating Corp., 2013 WL 5890612 (N.D. Ill. Nov. 1, 2013). See Shere v. Marshall Field & Co., 327 N.E.2d 92, (Ill. App. 1 Dist., 1974).

Missouri Courts have long held that accident reports need not be produced. However, in Porter v. Gottschall, Inc., 615 S.W.2d 63 (Mo. banc 1981), the Supreme Court ruled that reports may be produced "if substantial need for the items and an inability to obtain the substantial equivalent without undue hardship are shown." Id. at 65. In May Dept. Stores Co. v. Ryan, 699 S.W.2d 134 (Mo. App. E.D., 1985) the court noted that the rule does not usually apply to accident reports. It then stated:

“We have not hesitated to order the production of employee prepared incident reports where the record shows such reports to have been made for purposes other than anticipated litigation, and where the transmittal of such reports to an insurance company is unrelated to the insurance coverage and the defense of a potential lawsuit. In State ex rel. Little Rock Hospital v. Gaertner, 682 S.W.2d 146 (Mo.App.1984), we held an incident report prepared by an employee and forwarded to an insurance company was subject to discovery. However, as opposed to the facts in the instant case, the report in Little Rock Hospital, was prepared as part of a computerized future loss prevention program, not with a view toward potential litigation. The report form expressly stated that it was "not a notice of loss." Rather, it was made and used in the ordinary course of the hospital's business as a means of accident prevention. Therefore, the report was neither privileged, as it was not prepared or transmitted pursuant to the insurance or indemnity agreement, nor was it work product, as it was not made in anticipation of litigation.”

So, under Missouri law, if an incident report is truly made in anticipation of litigation it is not producible, but if it is not, then it may be produced.