Virginia Car Accidents & Premises Liability – a Lawyer’s Discovery

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The Virginia Supreme Court long has held that routine accident reports and statements are not privileged under Virginia’s “work product” doctrine.” A statement made by an employee to his employer, in the course of his ordinary duty, concerning a recent accident, and before litigation has been brought or threatened, is not privileged either in the hands of the employer or in the hands of the latter’s possessed by insurer attorney to whom it has been transmitted. We so held in Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 679, 680, 56 S.E. 725 [1907].” Robertson, 181 Va. at 539 (emphasis added). “The trial court correctly ruled that the [statement] was not a privileged communication.” Id. at 541. In Virginia-Carolina, “the [written accident] report was made by an official of the defendant in the course of his ordinary duty immediately after the accident, before any action had been brought or threatened. A report made under these circumstances . . . is not a privileged communication within the reason of the rule under the authorities.” 106 Va. at 680 (emphasis added).

The spirit of Virginia-Carolina and Robertson has been embodied by the clear majority of Circuit Courts. Internal premises liability “accident reports” prepared contemporaneously have been ruled “not work product immune from discovery.” See, e.g., Assaid v. Food Lion, Inc., No. 95-1201-R, Order at 1 (W.D.Va., May 7, 1997)(“Notice to Counsel form”); Lott v. Food Lion, Inc., (E.D.Va.); Blough v. Food Lion, Inc., 142 F.R.D. 622, 624 nn. 1-3 (E.D.Va. 1992)(Virginia), vacated and remanded on other grounds, No. 93-1169 (4th Cir. 1993)(unpublished opinion) (“General Liability Claim Notice to Counsel”); Lewis v. Ukrop’s Super Markets, Inc., No. CL01-9480, Bench Ruling (Williamsburg Jul. 30, 2001)(7 fall victims’ statements); Clark, 40 Va. Cir. at 230 (material captioned “prepared in anticipation of litigation”); Moore v. Farm Fresh, No. CL94-20624-RF, Order (Newport News Oct. 30, 1995); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Amherst 1992).