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WMATAs post-accident investigation reports provided limited privilege to discovery.

Felder v. Washington Metropolitan Area Transit Authority
153 F. Supp.3d 221 (2015)

by Gregory Emrick, Associate
Semmes, Bowen & Semmes (

Available at:

On October 6, 2013, Mark Ingram, a contractor at a Washington Metropolitan Area Transit Authority (“WMATA”) was killed when he was struck by a WMATA employee, Chris Hamlin, operating heavy machinery.   After the incident, in accordance with the Tri-State Oversight Committee that governs WMATA, WMATA performed an investigation into the cause of the accident.  As a result of the investigation a report was created, as well as a disciplinary memorandum, related to the operator of the heavy machinery.  Ultimately, a wrongful death case was filed against WMATA.

During the course of litigation in the United State District Court for the District of Columbia, the Plaintiff sought discovery of “The entire WMATA employment file, including all records of performance, supervision, evaluation, and discipline, for the following individuals involved in the incident: (a) Chris Hamlin.”  WMATA objected to producing the investigative report and disciplinary memorandum on the basis that they were protected from discovery by the self-evaluative privilege.  Plaintiff moved to compel production of the documents.

The Court, in evaluating whether the privilege attached to the documents first noted that the privilege, if it existed, only protected WMATA’s opinions, characterizations and assessments in furtherance of safety.  Factual information contained in the reports was not protected from disclosure.  In order to meet its burden to apply the privilege, however the objecting party must show: 1) the document must be a critique submitted as part of a mandatory government report; and 2) the document must have been prepare retrospectively as a component of a post-accident evaluation. Felder, 153 F. Supp, at 225, citing Wainwright v. Washington Metro. Area Transit Auth., 163 F.R.D. 391, 396 (D.D. C. 1995).

The court held that both documents were entitled to protection as they were prepared retrospectively, and were required as part of WMATA’s legal obligation to conduct an investigation.   The Court noted that even if the disciplinary memorandum may not have been technically required by law, it did not believe a rigid adherence to both prongs of the Wainwright analysis was required.  The disciplinary memorandum was created “for the purpose of retrospective self-criticism to improve health and safety” which was sufficient to protect the opinions and assessments contained in it.  The Court, however, did require that redacted versions of the memorandum, with specific delineated sentences removed, be provided, holding that the “document header, the description of the incident, the description of the discipline imposed, the handwritten portions, and the signature block, contains factual information which plaintiff is entitled to discover[.]”