Root Cause Analysis Tip: Protecting Your Root Cause Analysis from Discovery – Work Product and Motivation

Saw an interesting short piece on McGuireWoods web site. It describe a case between Chevron Midstream Pipelines and Sutton Towing LLC. 

It seems the court decided that a “legally chartered” root cause analysis that was performed at the direction of in-house Chevron attorneys was not different from normal root cause analysis that the company performed after any incident.

Why? Because of the motivation to perform this root cause analysis was the same as any other RCA. The judge relied on several pieces of evidence:

• A Chevron engineer “who agreed in her deposition that the ‘primary purpose of a root cause analysis’ is to ‘prevent a similar accident from happening again in the future,'” and “that it is ‘part of the Chevron ordinary course of business to conduct a root cause analysis’ after an incident.” 
• “Chevron Pipeline’s President’s statement in an employee newsletter that ‘[w]e are conducting root cause analyses of both incidents and will apply lessons learned. Our ultimate goal remains the same – an incident and injury-free workplace.’”
• “Chevron’s failure to provide the court examples of Chevron’s ordinary root cause analyses — noting that Chevron’s argument that its ordinary ‘incident reviews’ were different from its ‘legally chartered’ investigation ‘would be more convincing if there was actually another root cause analysis from which to distinguish the legally chartered one.'”

As Thomas Spahn, attorney from McGuireWoods wrote:

“To satisfy the work product motivation element, companies must demonstrate that they did something different or special because they anticipated litigation — beyond what they ordinarily would do, or which they were compelled to do by external or internal requirements.”

Of course, we always recommend that the statements in an incident report be carefully written and accurate. The words used can make a huge difference if your report is introduced as evidence in court.

Remember, what you write may not be interpreted or used as you intended it after the fact. An even if you think your investigation is protected as part of an attorney’s work product, the court may not agree.