Written accident and incident investigations, as well as comprehensive safety and health compliance audits, are essential components of an effective safety and health program. Unfortunately, OSHA has often pursued accident reports and safety audits to identify and document violations. Despite an internal policy that purports to limit OSHA’s access to employer self-audits, some courts have upheld OSHA’s legal right to obtain these documents as part of its investigation process.
This disturbing trend raises an important question: How can employers conduct an in-depth and often critical investigation of an accident, or a thorough audit of their safety and health practices, without running the risk that OSHA, MSHA, or other potential adversaries will obtain and use the information against them? The answer often lies in the utilization of the “attorney work product privilege.”
The attorney work product privilege originated in a 1947 U.S. Supreme Court case, Hickman v. Taylor, 329 U.S. 495 (1947), and is now incorporated into court rules throughout the United States, including the OSHA and MSHA Review Commissions. The work product privilege protects from discovery documents and other materials prepared by a party or its representative – usually its attorney – in anticipation of litigation or in preparation for trial. Protected documents can include witness statements, photographs, root cause analyses, incident reports, and audits. The privilege not only applies to materials prepared by the attorney, but also to materials prepared by anyone at the direction of the attorney including outside experts, consultants, or the employer’s own safety and health personnel.
A related protection is the “attorney-client privilege.” This privilege protects from disclosure oral or written communications between the employer and its legal counsel – either in-house or outside – related to the provision of legal advice.
The purpose of the attorney work product and attorney-client privileges is to promote the effective assistance of attorneys by assuring the confidentiality of their materials and communications. Without a guarantee of confidentiality, employers and attorneys would be unwilling to risk an in-depth investigation of an accident, or evaluate the company’s legal compliance with health and safety standards, knowing that its adversaries, including OSHA or MSHA, might discover and use the information against them. The privileges encourage a full and frank investigation and discussion of the issues.
The work product privilege does not protect all incident reports, safety audits and other safety documentation. Rather, it protects those prepared “in anticipation of litigation.” For example, routine incident reports or safety audits done in the normal course of business usually do not qualify. Similarly, audits and reports specifically required by OSHA or MSHA do not fall under the privilege. To qualify, an investigation report or audit must be specifically requested and directed by the employer’s attorney because of actual, threatened, or possible litigation – including litigation posed by an OSHA or MSHA investigation or a serious accident.
The work product privilege should be put in place as soon as possible, as failure to do so may invalidate any claim of privilege. In response to an accident or significant government inspection, the employer’s attorney should immediately direct, in writing, the employer’s health and safety personnel and/or outside consultants to conduct a confidential investigation on the attorney’s behalf. Similarly, compliance audits should be directed by the attorney in advance, not during or after the audit is completed.
Successful reliance upon the work product privilege requires that the employer maintain confidentiality of the investigation or audit and the reports it generates. Breach of confidentiality by sharing the investigation details or reports with third parties, including OSHA, can defeat the privilege, making all the materials subject to discovery. Attorneys directing the investigation or audit should instruct those preparing materials to maintain strict confidence, submit the reports directly to the attorney, and only share information with designated management personnel with a need-to-know. Employers must adhere to these instructions.
Utilization of applicable legal privileges should be considered as an option by all employers in responding to catastrophic accidents, fatalities or significant OSHA and MSHA inspections. As a word of caution, the privileges can often involve complex legal issues and should not be attempted without legal advice.