Work Product Doctrine – OSI Discovery

Ex parte CSX Transportation, Inc., [Ms. SC-2022-0518, Oct. 7, 2022] __ So. 3d __ (Ala. 2022). The Court (Bolin, J.; Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur; Stewart, J., concurs in part and concurs in the result) grants in part and denies in part CSX Transportation, Inc.’s mandamus petition challenging the Montgomery Circuit Court’s order granting Christopher M. Ellis’s motion to compel discovery in an FELA action filed by Ellis arising from an on-the-job injury. The order compelling production encompassed documents maintained by CSX “in its risk-management system (“the RMS”), a proprietary electronic database created and maintained by CSX.” Ms. *5.

The Court concludes

“CSX established that the materials contained in the RMS were prepared in anticipation of litigation. Initially, we note that this Court has recognized that anticipating the commencement of an action against a railroad company following an injury to a railroad employee and expecting litigation to arise as a result of such an injury are reasonable assumptions. See Ex parte Norfolk S. Ry. Co., 897 So. 2d 290 (Ala. 2004). CSX presented evidence indicating that, within three days of the accident, Ellis’s counsel had notified CSX that Ellis had obtained representation regarding his claims against CSX for “any and all injuries and damages arising from his on-the-job injury.” CSX also presented the affidavit of Scully, CSX’s senior director of risk management, who testified that the RMS is part of CSX’s legal department and that the RMS investigates and evaluates potential and actual claims asserted by employees against CSX in anticipation of litigation.

Ms. **19-20.

The Court denies CSX’s petition challenging other aspects of the order as compelling production patently irrelevant information, and holds “the disputed discovery requests seek information relative to similar prior accidents, incidents, and ‘near misses,’ which may be directly relevant to the issues of notice and foreseeability in this case. Accordingly, we cannot say that the trial court exceeded the broad discretion afforded to it in discovery matters by granting Ellis’s motion to compel.” Ms. *28.

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