As everyone in the industry knows, maritime work can be hazardous. Maritime companies today, big and small, must take appropriate steps to maximize the safety of their operations and constantly improve their safety programs. A major part of that process involves identifying risks and hazards before and after accidents and near misses occur. Companies that gather information to evaluate the causes of, and remedies for, accidents and near-misses, however, run the risk that any reports and other documentation identifying shortcomings within their operations will become a roadmap for plaintiffs’ counsel if litigation ensues and they are required to disclose such information and documents in discovery.
Therefore, the need to protect incident investigations and the resulting findings and conclusions from disclosure should be of great concern to every company.
The legal system is weighted heavily towards disclosure. A company wishing to maximize its chances of protecting its investigations and findings must fashion accident and near miss reporting protocols to take advantage of the available legal protections against disclosure. These are, from strongest to weakest: (1) the attorney-client privilege; (2) the attorney work-product doctrine; and (3) the self-critical analysis privilege. Given the strong policy in favor of disclosure, companies should assume that the documentation reflecting their incident and near-miss data, investigations, and conclusions, will likely be discoverable, except in the most bright-line situations. A company must balance its need for continuous safety improvement and transparency against the risk of admitting a shortcoming in a discoverable report or audit. The challenge is to employ creative business practices and nuanced approaches to risk management that will optimize the chances of successfully limiting disclosure should the incident result in litigation.
Management should have a basic understanding of the negligence standard(s) that will apply to their employees and work sites. With the applicable legal principles in mind, investigators and safety managers will be able to better frame the facts and cause analysis in their investigative documentation to reduce exposure while still benefitting from lessons learned.
Marine safety managers should understand at least three basic legal principles that apply to seamen: (1) the Jones Act “featherweight” causation standard for negligence; (2) the duty to provide a seaworthy vessel; and (3) contributory negligence.
“Featherweight” Causation for Jones Act Seamen
Jones Act seaman are entitled to a ‘featherweight’ causation standard that is much more deferential than the ‘proximate cause’ causation standard applied to non-seaman negligence claims. Under this ‘featherweight’ standard, a seaman is entitled to a jury instruction that the maritime employer’s act or omission caused the seaman’s injury “if it played any part, no matter how slight, in bringing about the injury or damage.” Consideration of this extremely low threshold for causation should inform the investigator’s framing of the relevant facts.
Marine employers must also provide seaworthy vessels for their employees. A vessel is seaworthy if it is “fit for its intended purpose.” If possible, when an investigation of a near-miss or incident reveals a deficiency in the vessel itself, efforts should be made to appropriately identify the condition without admitting that the defect rendered the vessel unfit for its intended purpose.
Safety managers oftentimes focus their accident or near-miss investigations and analysis on apparent physical defects of the vessel or operational shortcomings and pay too little attention to the human factors involved. Contributory (or comparative) fault allows a jury to take into account the injured party’s role in his or her own accident. A finding by a jury that a seaman was 50% at fault for his accident and resulting injuries because he was, for example, ‘not watching where he was going,’ would reduce his damages accordingly by 50%.
Care should be taken to correctly document all of the human factors that led to the incident including, for example, whether the seaman failed to exercise ‘situational awareness’, suffered a lapse of judgment, failed to identify a known risk or obvious hazard, or was simply careless or inattentive.
If possible, upper management should also consult with their legal advisors before and during the investigation process, not as an afterthought, so that they are best able to apply the following protections.
The Attorney-Client Privilege
The attorney-client privilege is a company’s strongest legal ‘tool’ for limiting disclosure of its investigation and analysis of incidents and near-misses. However, it does not provide blanket protection or even apply in many common scenarios.
The attorney-client privilege generally protects communications between the client and attorney if (1) legal advice is being sought, (2) the attorney is acting in his capacity as such, (3) the communications relate to the purpose of seeking legal advice, (4) are made in confidence and (5) are not waived. The privilege also extends to a client’s and attorney’s communications made between the attorney’s agents, such as investigators, paralegals, secretaries, and other employees.
Involving an attorney in a company’s investigation of an incident can trigger the attorney-client privilege. Application of the privilege will depend on whether the attorney was acting in his capacity as an attorney, or as something else, such as a business consultant. The clearer it is that the attorney was involved in the investigation in order to render legal advice, the greater the chances are that the privilege will apply. If it appears that the attorney was involved in the investigation in order to further the company’s business objectives, and not to provide legal guidance or advice, the communications will likely be discoverable. This is especially true where the attorney is the company’s in-house counsel. Because in-house counsel are commonly involved in the company’s day-to-day business operations and decision-making, their involvement in an investigation of risk analysis may not qualify as providing legal advice. Therefore, involving outside legal counsel as early as possible will improve the chances of invoking the privilege.
In Bross v. Chevron, U.S.A., Inc., the district court held that a Root Cause Analysis report (“RCA”) was protected from disclosure by the attorney-client privilege. Immediately after the incident, the defendant’s legal department drafted a “Legal Charter” expressly providing that the RCA’s purpose was for “evaluating Chevron’s possible involvement and legal exposure . . .” It further provided that all evidence gathered by the investigative team was to be confidential and subject to the attorney-client privilege. The court noted that the RCA did not contain any written or recorded witness statements, but only summaries of the interview notes that were turned over to the attorney after the investigation, and that the Chevron employee connected with the RCA did not retain custody of the RCA or the supporting documentation.
Work Product Doctrine
The work product doctrine protects the disclosure of documents and tangible things that are prepared by or for a party in anticipation of litigation, including materials prepared by the party’s attorneys and investigators. “At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” In most cases, successfully invoking the doctrine will require a showing that “the primary motivating purpose behind the creation of the document was to aid in possible future litigation,” or that the documents were actually “prepared or obtained because of the prospect of litigation.”
The work product doctrine will not protect documents prepared in the ordinary course of business and, as with the attorney-client privilege, it will also not protect the underlying relevant facts from disclosure. What it will protect are documents reflecting the attorney’s, thoughts, opinions, and mental impressions created in anticipation of litigation. To evaluate whether the doctrine applies, courts often ask whether the document would have been created regardless of whether litigation was expected.
While the odds are in favor of disclosure, there are a few things a company can do to maximize its chances of invoking the work product doctrine. As discussed above regarding the attorney-client privilege, involve outside counsel early on in the investigative process and label all opinion and fact work product documents “Confidential – Attorney Work Product.” Additionally, factual findings should be framed with reference to applicable legal principles and discussed in the context of imminent litigation.
A company might consider conducting one investigation, but producing two root cause analyses: a generic discoverable report without admissions of any shortcomings for dissemination as a learning tool, and a second, hopefully protected, report that contains any specific findings of liability and damages framed in the context of expected litigation.
Self-Critical Analysis Privilege
The third and weakest legal ‘tool’ for protecting incident investigations and reports is the self-critical analysis privilege (“SCA”). This privilege ostensibly protects documents and information reflecting a party’s own critical analysis of its operations and procedures undertaken in order to improve safety and prevent future incidents. The privilege, however, is not widely accepted or uniformly applied and has not been recognized in the Ninth Circuit, or by California courts.
The policy behind the privilege is to encourage companies to constantly analyze their operational and safety procedures, both before and after incidents and near misses, in order to improve future safety performance. By protecting the disclosure of such information and documents, companies will be encouraged to rigorously examine and criticize their own shortcomings and to then implement appropriate improvements and corrective measures without risking exposure. If the company’s own critical analysis was subject to disclosure, there would be a “chilling” effect that would dampen any incentive to self-criticize and improve the safety of its operations. The privilege has been narrowly and inconsistently extended in various types of cases, including employment and product liability cases.
When it has been found to apply, the privilege will protect a party’s data and documents: (1) that are generated by the party’s self-critical analysis; (2) where the public has a strong interest in maintaining the free flow of the type of information being sought; and (3) the information being sought (and the self-critical process) would be curtailed if disclosure were required. The self-critical materials must also have been intended to be confidential, and must, in fact, be confidential.
Any hope that the self-critical analysis privilege will ever be widely accepted must lie with Congress. In the meantime, it is clear that application of the attorney-client privilege and the attorney work product doctrine provide a company’s best chances to protect its incident investigations and reports.
In our experience, incident and near-miss data, investigations, and reports will most likely be subject to disclosure in discovery. Every company that undertakes such self-assessment and reporting should assume that worst-case scenario and take the appropriate steps to minimize the exposure. Such steps will necessarily involve creative and nuanced approaches to investigation and reporting procedures that can serve the dual purposes of facilitating the improvement of workplace safety, yet also afford the best chances of protecting self-critical analysis from disclosure. Litigation counsel should be involved in designing processes that maximize the available protections and promote investigative confidentiality.
For example, simply sending reports to your in-house counsel will not necessarily ensure protection. When an incident or near-miss occurs, consider involving an outside attorney from the outset to initiate and oversee all fact-gathering, investigative, and analytical efforts. Instruct your outside counsel to communicate only with those persons absolutely necessary to complete the investigation and analysis, and have the attorney admonish those he or she does contact not to disclose the communications to anyone else, unless approved by the attorney first. When generating an email regarding the incident, put the outside attorney’s address in the “To:” line and everyone else in the “Cc” line. Emails should always be framed in terms of a request for legal advice. Limit the use of the “Confidential – Attorney Client Privilege/Work Product” label to those documents that are actually protected in order to avoid ‘watering down’ the designation – and have counsel determine when such labels are appropriate.
For more information on this topic please contact Max Kelley at firstname.lastname@example.org