Facts cannot be hidden under the guise of Privilege:
Defendants can no longer hide facts with improper objections of privilege. The Keyworth decision upholds the purpose of the PSA by recognizing the privilege of self-critical analysis when a defendant complies with the PSA’s strict procedural requirements. When material is obtained from other sources, the privilege does not apply. The duty to document facts in investigative and incident reports existed prior to the passage of the Act, and a plaintiff’s right to discover those facts remains.
How will the Decision impact discovery:
Identifying individuals with knowledge, obtaining relevant documents, and conducting targeted depositions, to obtain facts pertinent to the claim, should occur without an endless interruption of objections and motion practice.
Written Discovery:
Since the passage of the PSA, plaintiffs learned largely nothing about the facts of their case from defendants’ interrogatory answers. As identified in the Keyworth decision, defendants in both companion cases refused to disclose facts, depriving plaintiffs of crucial information necessary to prepare their cases for trial. In Bender, defendants concealed the identity of the person who attacked plaintiff and those who gave post-incident statements, along with the knowledge those individuals had about the attacker’s prior behavior. Defendants stonewalled discovery by improperly asserting that under the PSA, the information was privileged, despite the failure to follow the PSA’s procedural requirements. The Keyworth decision should eliminate unfounded objections at the early stages of discovery, enabling plaintiffs to efficiently proceed with gathering the facts necessary to prove the elements of the claim.
Discovery Depositions:
Depositions often take place years after an incident occurs, and witnesses cannot recall facts known at the time the incident occurred. Prior to the Keyworth decision, depositions became futile attempts to discover facts. Longwinded objections that culminated in witnesses being banned from looking at documentation, such as incident reports prepared contemporaneously with the incident complained of, was commonplace. Discovery became embroiled in motion practice, all over an attempt to access facts.
Going forward, a deponent should be provided with documentation prepared at the time of the incident to refresh their recollection provided the material was obtained from a source or context other than that specified in the PSA. Invoking the PSA, as defendants have routinely done, without proof that the procedural requirements have been complied with, will not suffice.
Why the Keyworth and Bender Decision Matters to Your Claim:
Ascertaining all facts surrounding a claim is essential for trial preparation and strategy. Since the enactment of the PSA, defendants all too often knew facts that plaintiffs didn’t, under the guise of privilege. The Supreme Court’s conclusion that the Bender and Keyworth incident reports and associated documents were not privileged and subject to discovery should caution defendants from concealing facts when they lack any basis to do so, resulting in a more efficient and fair discovery process.