Michael A. Salvati

In this product liability case, the plaintiff’s wife lost control of the ATV she was operating and died in a fatal accident. A little over a year later, a similar incident occurred, and the defendant solicited a human factors review of its product instructions, which were subsequently revised. In the underlying litigation, the plaintiff sought copies of that human factors report in discovery; the defendant resisted disclosure, citing the work product doctrine.

After supplemental briefing and an in-camera review of the document, the District Court found that the report had to be disclosed. To be entitled to work product protection, the report had to be prepared in anticipation of litigation and that anticipation had to be objectively reasonable. Although the court found that the latter element to be met—it was objectively reasonable to suspect that litigation would arise over the second ATV incident—the former was not. 

The court characterized the human factors report as a “dual purpose document”: one prepared partly for litigation purposes and partly for a separate business purpose. Only when such a document is “primarily” created for the prospect of litigation, when litigation is the “driving force” behind the request, will a dual purpose document be entitled to protection. 

The defendant did not have documentation of the request for the human factors report and could only assert that it was requested verbally in a meeting at which the second ATV accident was discussed. Further, though the report suggested revisions to the product instructions, it did not discuss or analyze the alleged accident, or offer any legal or strategic analysis. A subsequent e-mail from the human factors consultants offered to discuss the instructions further once their proposed revisions had been “implemented,” suggesting again that the review was used primarily for a business purpose rather than a litigation one. 

Given this analysis, the court found that the defendant had not carried its burden of establishing that the human factors report was prepared primarily in anticipation of litigation. The Martz decision offers helpful guidance for federal practitioners as to how to preserve work product protection for post-incident analyses and reports. 

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