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In the aftermath of a major accident, leveraging attorney-client privilege during the incident investigation can help facilitate frank and open discussions regarding the event while protecting confidentiality.
In the moments immediately following an incident, plant managers and workers have a daunting task in front of them. The top priority for management is the health and safety of facility personnel and the surrounding community. This top priority is closely followed by the need to understand what factors contributed to the incident so that future failures can be prevented.
The legal implications and processes that arise as a result of an incident may be unfamiliar to employees and managers who are navigating the incident aftermath. However, legal considerations are often crucial during the timeframe in which witnesses are interviewed and critical evidence is collected and preserved.
Leveraging attorney-client privilege during incident investigations may have the advantage of facilitating frank and open discussions regarding issues surrounding the event while protecting confidentiality. Furthermore, attorneys are skilled at asking critical questions and challenging the investigation team to provide objective evidence to support the investigation process. This article discusses good practices for incorporating attorney-client privilege guidelines into a facility's incident investigation process. Examples are presented that illustrate the effective leveraging of attorneyclient privilege, the benefits it can provide to incident investigation, and the role of legal counsel in the process.
Introduction to attorney-client privilege
In the aftermath of a major accident, there is a strong likelihood that a facility owner or operator may face significant civil liability and potentially even a criminal investigation. Although it is important to form an investigation team that includes engineers and individuals familiar with operations to conduct a factual causal investigation, it is equally important to involve legal counsel from the onset in these investigations. Involving an attorney may protect some communications from future disclosure as "attorneyclient privileged." And, investigation materials may also be protected as "work-product privileged."
Attorney-client privilege is defined by the Federal Rules of Evidence to be "the protection that applicable law provides for confidential attorney-client communications" (1). In practice, this means that communications between attorneys and their clients are protected as confidential from certain disclosures, including their use as evidence in a court of law. Examples of attorney-client communications may include...