Accident Investigations Vital but Potentially Perilous for Employers
After a workplace accident or a near-miss, employers must review the incident to prevent future safety issues or to comply with regulatory requirements, but they need to take care that they are not creating documents that can be used against them, experts say.
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To invoke attorney-client privilege, either in-house or outside counsel must be a part of the investigation team, and the individual must clearly be involved for the purpose of providing legal advice, said Caroline Donelan, partner in the Los Angeles office of Blank Rome LLP.
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Interview notes and statements from an investigation, however, may be discoverable, and only crucial information should be recorded, Ms. Donelan said.
“What I like to do is to be very judicious with those interview notes and then prepare a sort of executive legal summary,” she said. “Include in the summary of facts what you are doing, but make sure that is a fully privileged legal analysis or legal recommendation.”
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“Accident Investigations Vital but Potentially Perilous for Employers,” by Angela Childers was published in Business Insurance on September 30, 2020.