In a premises case, the first written account of the fall is often the one prepared by the property's own employee in the minutes or hours after it happened. It may record the location, the condition of the floor, the names of witnesses, and what the plaintiff said. It may also record that an employee had walked the area shortly before, or that a spill had been reported earlier. Defendants know this, and they routinely resist production. Winning access depends on framing the report as an ordinary business record rather than litigation material, and having a fallback plan if the court disagrees.
The Defense Toolkit
Defense counsel typically assert some combination of work-product protection, attorney-client privilege, and statutory or common-law protection for insurer communications. The argument is that the report was prepared in anticipation of litigation, or at the direction of counsel or the insurer, and therefore falls outside discovery. Federal Rule 26(b)(3) and state analogs protect documents prepared in anticipation of litigation, though a party who shows substantial need and inability to obtain the equivalent by other means can overcome the protection for factual material.
The attorney-client privilege is a weaker argument for most incident reports, because they are usually written by a store employee for internal purposes and are not communications for the purpose of obtaining legal advice. Courts are generally skeptical when defendants stretch the privilege to cover routine operational forms.
Ordinary Course Versus Anticipation of Litigation
The deciding question in most jurisdictions is why the report was created. Reports prepared under a standing policy, on a form used for every incident, and routed to risk management or store management for safety review, are usually seen as ordinary business records. They would have been created regardless of whether a lawsuit followed. Reports created at the specific request of an insurer or attorney, or forwarded exclusively to the legal department, are more likely to be protected.
Build the record to show the ordinary-course purpose. In your first set of requests and in a deposition of the store manager or risk-management representative, ask:
- Is an incident report completed for every customer accident, regardless of injury severity?
- Is there a written policy requiring it, and what does the policy say about its purpose?
- Who receives the report, and is it used for safety trend analysis, training, or maintenance planning?
- When in the process does counsel or the insurer become involved?
- Are there multiple versions, such as a store-level report and a separate risk-management summary?
If the answers show that the form is part of routine safety practice, the work-product claim weakens. If the company's own training materials describe the report as an internal safety tool, attach them to the motion to compel.
Insurer-Directed Reports
Some states recognize a qualified protection for communications between an insured and its liability insurer, treating them as privileged because the insurer has a duty to defend. Others reject it, or protect only communications made after a claim is asserted. Research the rule in your forum before serving requests, so you can tailor them. If the privilege applies to insurer communications, focus on getting the underlying facts through other documents and testimony.
Fallback Discovery
Even if the narrative report is withheld, the facts are rarely protected. Pursue alternatives in parallel:
- Witness identities and contact information, which are not privileged even when a statement is.
- Photographs and video taken at the scene, which are often treated as facts about the condition of the premises.
- Inspection logs, sweep sheets, and maintenance records for the area for the period before the incident.
- Employee schedules and assignments, to identify who was responsible for that zone.
- Prior incident reports at the same location, which go to notice and recurring conditions.
Request a privilege log that identifies the date, author, recipient, and basis for withholding each document. Courts often order in camera review where the log is conclusory. A log that lists a report prepared on the day of the accident by a store employee, with distribution to store management, supports your argument that it is a routine record.
Statements by the Plaintiff
Many incident reports include a quote from the plaintiff, such as an admission that they were not watching their step. Obtain it, and prepare your client for questions about it. A party generally has a right to obtain their own statement, and some rules entitle them to it on request. Even where a defendant declines to produce the narrative, a deposition of the employee who took it can reveal what was said.
Preservation First
Send a preservation letter immediately after retention, identifying the incident report, surveillance footage, sweep logs, and communications. Spoliation of a routine record after notice of a claim can support sanctions or an adverse inference, as discussed in related slip-and-fall coverage. Where the report reveals prior similar incidents, those documents may also support a claim based on the doctrines we cover in our case law category.
Takeaways
- Prove the report was created under a routine, standing policy.
- Learn your forum's rule on insurer-directed communications before drafting requests.
- Demand a detailed privilege log and seek in camera review.
- Pursue witnesses, photos, and logs separately from the narrative.