By Linda C. Schoonmaker and Elizabeth L. Humphrey
Seyfarth Synopsis: Railroad companies spend millions of dollars and thousands of hours developing their risk management systems. When a plaintiff aims to discover risk management data, companies understandably balk at the prospect of revealing information they have gone to great lengths to collect, categorize, and assess for the purpose of mitigating litigation risk. A recent opinion from the Alabama Supreme Court suggests that companies need not worry about disclosing their risk management data.
Christopher Ellis worked for CSX Transportation, Inc. as a remote-control foreman at CSX’s Montgomery yard. While riding on the ladder of a railcar during the course of his employment with CSX, Ellis was struck in the torso by the broken door handle and latch assembly of a railcar on an adjacent track. The impact of the blow knocked Ellis off the railcar on which he was riding, causing him to suffer significant injuries. On November 17, 2020, Ellis sued CSX asserting claims under the Federal Employers’ Liability Act (“FELA”) and the Safety Appliance Act (“the SAA”). Ellis propounded 25 multipart interrogatories and 62 requests for production to CSX with his complaint. While Ellis’s initial discovery requests seemed innocuous, in a subsequent motion to compel it became clear that Ellis sought information in CSX’s risk management system (“RMS”), which CSX claimed to contain confidential work-product. The trial court ultimately agreed with Ellis, granted his motion to compel, and ordered CSX to produce information contained in its RMS.
CSX petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to, among other things, vacate its order granting Ellis’s motion to compel discovery and either enter an order denying Ellis’s motion to compel or a protective order barring production of materials CSX contends to be protected work product or patently irrelevant. The Supreme Court granted the petition for mandamus relief in part and directed the trial court to vacate its order to the extent that it requires the production of materials contained in the company’s RMS in violation of the work-product doctrine. The Court denied the petition in all other respects.
The Court relied on two pieces of evidence to support its finding that the risk management materials are protected under the work-product doctrine. First, the Court noted that CSX received a letter from plaintiff’s counsel three days after Ellis’s accident advising CSX that they represented Ellis in his claims relating to injuries he suffered from his on-the-job injury. The Court found that this letter notified CSX that Ellis intended to seek damages for his injuries and provided a reasonable basis for CSX to assume Ellis would seek those damages through litigation.
The Court also found persuasive an affidavit from CSX’s senior director of risk management, which described the structure, processes, functions, and outputs of the company’s risk management department (“RMD”). The senior director of risk management testified that the RMD is classified as part of CSX’s legal department and that the RMD is managed and supervised by CSX’s general counsel. He explicitly stated that the RMD investigates potential and actual claims asserted by employees in anticipation of litigation and in consultation with CSX’s legal counsel. Those investigations include factual information detailing the employee’s medical condition, lost wages, witness statements as well as claim analysis discussing the merits of the employee’s claim, potential past and future lost wages, and the employee’s ability to return to work. The RMD discusses the results of its investigation with legal counsel to evaluate the claim and, if appropriate, arrive at a reasonable settlement value of the claim. That information is then entered into the RMS.
In light of that testimony, the Court found that the materials contained in the RMS were prepared because of the prospect of litigation in consultation with CSX’s counsel and therefore are privileged work-product. The Court further found that some of the RMS materials consist of the RMD personnel’s mental impressions, conclusions, and opinions, which are entitled to nearly absolute immunity and are discoverable only in “very rare and extraordinary circumstances.” Even had Ellis made a showing of substantial need for and an inability to otherwise obtain the work-product, the RMD personnel’s opinion work product would not be discoverable.
Although the company here was a railroad, this case provides guidance to any company with a risk management system. A company’s risk management department should be nestled within the company’s legal department. The risk management team should report to the company’s general counsel and work in consultation with company attorneys to evaluate employee claims, regardless of whether the employee has notified the company that he or she intends to file suit for on-the-job injuries. If a company receives a letter of representation, or is otherwise notified that an injured employee intends to file suit, it should begin a risk management investigation immediately.
Companies should consider adopting a policy stating that investigations of employee injuries are conducted in anticipation of litigation and in consultation with the company’s legal department. That policy should include language stating that their risk management system contains the mental impressions, conclusions, and opinions regarding the merits and value of, as well as potential defenses to, employee injury claims. Make sure that all opinions related to claims evaluation are actually entered into the company’s risk management system to ensure all information subject to a potential work-product challenge are organized and easily accessible.
Companies should regularly review their policies regarding risk management investigations and data retention considering the hefty investment that that they have made laying the groundwork for their risk management systems.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.