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Accident Scene Photos Not Protected by Attorney-Client Privilege

October 26, 2020
Sarah Connor
Posted in: General Liability

The decedent Plaintiff was electrocuted when he came in contact with a downed power line owned by West Penn Power Company. After the incident, the power company’s claims department visited the accident scene and took photographs “to convey information to West Penn’s counsel.” Plaintiff’s counsel requested these photographs, and the power company objected, arguing the photographs were taken at the request of its legal department, and therefore protected by attorney-client privilege, and were further protected as attorney work product.

The Court did a careful review and analysis of these protections from discovery and held that the photographs only depicted the scene of the accident and were not a protected communication to counsel. Additionally, the Court held the photographs were not attorney work product, as they did not contain the mental impressions of counsel, nor did the power company’s attorney give any specific instruction as to what should be photographed. Moreover, the photographs did not contain counsel’s opinions on value or the merit of the claim, nor the power company’s defenses, strategy, or tactics and, therefore the Court ordered the photographs be produced to Plaintiff’s counsel as part of the normal course of discovery.

Comment:  In this case, the production of the post-accident photographs appears reasonable and justified. However, the analysis would likely change had the photographs been taken by counsel, or if the power company’s attorney attended the site inspection and directed which photographs be taken. For companies who wish to inspect, investigate, and photograph an accident scene, it is best to involve experienced counsel as early as possible.