Illinois lawyers sometimes struggle with discovery requests to produce incident reports. The defendant in a case where someone was injured may as a matter of business have a rule about preparing incident reports by employees or managers of these facilities.
Suppose a customer at an automotive repair company is injured while waiting to receive the person’s vehicle when the customer falls down a stairwell and is injured. The manager of the auto repair shop by rule prepares an incident report. The customer who was injured hires an attorney who now seeks a copy of that incident report, but the auto repair shop attorney claims that the report is privileged.
Illinois’ Rule of Evidence 801(d)(2)(A) is the operative law on why the auto repair shop must turn over the incident report. Illinois Rule of Evidence 801(d)(2)(A) is an admission by a party opponent that states: “That the statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity.” IRE 801(d)(2)(A).
Typically, the owner of the auto repair shop will reveal that it is the job of the manager to enter into its computer system and/or write an incident report stating the first and last name of the injured party, the person’s address, phone number and a description of what occurred, including whether the person was taken by ambulance to a nearby hospital. In addition, there may have been comments and witness statements regarding how the incident occurred and what the injured party had to say. These incident reports are typically turned over to the business insurance company for claim handling.
In addition, Illinois Rules of Evidence 803(b)(6) states that a “memorandum, report, record or data compilation, in any form of acts, events, conditions, opinions or diagnoses made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases, medical records.”
In the example of an auto repair shop where a customer is injured, the auto repair shop is a defendant, a party, and the creator of the incident report is, by creating the notice of claim or incident report, making a record of a regularly conducted business activity, which was created on the same date of the incident. These reports generally are made on the same day as an incident and are considered trustworthy because they are compiled as a business record that is kept routinely and made to be accurate.
The rationale underlying the admissibility of business records is the recognition that businesses are motivated to keep routinely accurate records and they are unlikely to falsify records kept in the ordinary course of business and upon which they depend. Holland v. Schwan’s Home Service Inc., 213 IL App (5th) 110560.
The party tendering the record need only lay a foundation for the admission of the record by establishing the record was made during the regular course of business and at or near the time of the transaction. Solis v. BASF Corp., 2012 IL App (1st) 110875, ¶85.
In another Illinois case supporting this proposition, it was held that this rule (Illinois Rules of Evidence) does not apply where a report was sought to be admitted against the party who prepared it. Whether the report is damaging to the party who prepared it, there is no reason to question its trustworthiness. In a case that’s called Poltrock v. Chicago and North Western Transportation Co. (1986), 151 Ill. App.3d 250. The Poltrock case set out an exception where the admission of an incident report was improper because the report may have been prepared in anticipation of future litigation rather than in the ordinary course of business and thus the motivation in the preparation may affect its trustworthiness. However, the Poltrock case held that this rule does not apply when a report was sought to be admitted against the party who prepared it. There is no reason to question its trustworthiness in a case when the report may be damaging to the party.
In the example of an auto repair shop where a customer is injured, the injured party seeks to admit the incident report against this auto repair shop company because it is the party that prepared it and on the basis that the employee’s statement is damaging to the repair shop, it is considered trustworthy. Therefore, an incident report such as set out in this example is admissible under Illinois Rules of Evidence because there is a proper foundation as to when it was created, who created it and how they created it.
Kreisman Law Offices has been handling catastrophic injury cases, automobile accident cases, motorcycle accident cases and bicycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Schiller Park, Homewood, Hazel Crest, Harvey, Hanover Park, Glenwood, Forest Park, Franklin Park, Glencoe, Oak Park, Orland Hills, Palos Hills, Park Ridge, Chicago (Southport, Pill Hill, Pulaski Park, Printer’s Row, Edgewater, Edison Park, Englewood, Garfield Park, Greek Town, Humboldt Park, Hyde Park, Irving Park), Cicero, Des Plaines, Northfield and Niles, Ill.
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