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ALABAMACharles A. “Chuck” Stewart IIIBRADLEY ARANT BOULT CUMMINGS LLPRSA Dexter Avenue Building445 Dexter Avenue, Suite 9075Montgomery, AL 36104Phone: (334) 956-7608www.babc.comcstewart@babc.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?There is no clear right to a privilege for pre-suit investigation materials. Pre-suitinvestigation materials are only privileged when they are prepared in anticipation oflitigation, not when produced in the ordinary course of a party’s business. That is, thepre-suit materials must have been prepared or obtained because of the prospect oflitigation. Involving counsel helps to establish the burden. However, the privilege canextend to non-lawyers, as well, so long as the investigative materials can fairly be saidto have been prepared in anticipation of litigation. Routine investigations do notautomatically gain the protection of the privilege. See Ex parte Mobile Service GasCorp., 123 So. 3d 499 (Ala. 2013); Adams v. City of Montgomery, 282 F.R.D. 627 (M.D.Ala. 2012).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?A party or witness is entitled to his/her own written or recorded statement. However,statements which are taken in anticipation of litigation constitute work product if theymeet the test set out above in paragraph one. Even if the work product privilegeapplies, however, an exception exists when the party requesting the material can showa substantial need for it coupled with undue hardship. See Ex parte Norfolk SouthernRy. Co., 897 So.2d 290 (Ala. 2004); Ala. R. Civ. P. 26(b)(4).3. Does your state recognize a self-critical analysis privilege?No.