Protecting Privileged Information

March 21, 2019

Following an accident, a company will usually carry out an investigation to determine what went wrong and why. Sometimes, the accident might constitute a violation of the OHS law that could lead to prosecution. For example, an amputation injury might be the direct result of failure to install a required machine guard. The investigation report will establish the causes, remedial actions required and what lessons can be learnt, if any. Given their purpose, accident investigation reports are often self critical, especially because their objective is to get some insight on the causes of the accident and the necessary measures to implement to prevent future occurrences.

 

But here’s the problem: When you prepare an internal accident report and disclose all the findings of your investigation, you expose your company and the individuals within it—including yourself—to risk of liability. Government investigators and prosecutors could get their hands on your report and cite it as evidence in their prosecution against you. It is then essential to understand this risk and protect yourself and your company. How? By using a legal doctrine known as “privilege” to shield the results of internal accident investigations from investigators, prosecutors and others that might use them against you in a legal proceeding.

 

The concept of privilege is designed to protect the confidentiality of certain materials and documents that could be turned into evidence in a prosecution – not only internal accident reports but other internal records that might document deficiencies in the company’s safety program, such as safety audits, inspections and risk assessments. When accidents occur (fatality and/or serious injury), OHS officials conduct workplace investigations. In addition to looking at the accident scene, investigators can interview workers, company officials and others and demand to see records relating to the accident. This may include the results of internal accident investigations. But that authority to request internal reports is subject to the rights of privilege. In other words, you don’t have to disclose documents to an OHS investigator (or other government officials) if you can prove that those documents are “privileged”. Unfortunately, establishing and preserving privilege is not a simple task.

 

There are 2 kinds of privileges you can use to shield accident reports and other sensitive documents:

 

1. The Contemplated Litigation Privilege

When a company faces a reasonable risk of being prosecuted, it will assess its risks and determine its strategy. In the context of a workplace accident, this might involve making an assessment of all of the things the company did wrong. The “contemplated litigation” privilege enables the company to make such an assessment without having to disclose the results to government inspectors or prosecutors. Legally, a company would be under no obligation to share that information if it was gathered in contemplation of litigation with government OHS officials. Therefore, an internal accident report can be covered by the privilege if it’s prepared in anticipation of litigation, but not all accident reports will qualify. 

For the privilege to apply:

  • The prospect of litigation must be the primary reason for creating the document; 

  • At the time the report was created, a lawsuit was actually underway or “reasonably contemplated.” 

If you think there’s a good chance that the accident will lead to an OHS prosecution (or a workers’ compensation proceeding), you can prepare the accident report as part of your litigation preparation so that the privilege applies.

 

2. The Solicitor-Client Privilege

 

Unlike the “contemplation of litigation” privilege, “solicitor-client” privilege applies only if you get your lawyer involved. However, the mere fact that a document is forwarded or copied to a lawyer does not mean it is protected by the solicitor-client. For documents to be considered privileged:

  • The document must be part of a communication between you and your lawyer;

  • The communication must be made in confidence; AND

  • The purpose of the communication must be to seek legal advice—even if the communication isn’t for the purpose of dealing with a specific lawsuit.
     

The simplest way to meet the conditions of the privilege is to specifically ask the lawyer to prepare or review the accident report for the purpose of providing legal advice. Ideally, this request for advice should be in writing.

 

 

How to Keep Documents Privileged

 

Preserving privilege is all about taking steps to limit disclosure:
 

  1. Label All Documents as Privileged: Label all of the documents “Privileged and Confidential: Prepared in Contemplation of Litigation” and/or “Privileged and Confidential: Solicitor-Client Communication.”. Remember, stamping a document “PRIVILEGED” doesn’t make it so. A document is protected only if it meets the prerequisites of the anticipated litigation or solicitor-client privilege. However, marking those documents clearly indicates that they are privileged and should be handled carefully in order to avoid inadvertent disclosure.
     

  2. Keep Privileged Documents Segregated: Keep hard copies and electronic documents that you want to keep privileged separate from others. Consider not just separate files but separate rooms.
     

  3. Keep Copies to a Minimum: Limit the number of copies of privileged documents to the minimum necessary. The more copies floating around, the less control you have over where they end up. Make sure that the people to whom you give copies return or destroy the document after reviewing it. Since electronic documents are harder to destroy, try to limit distribution to paper copies.
     

  4. Don’t Disclose Document to your Safety Committee: OHS laws of some provinces may require employers to disclose the results of internal accident reports to the Safety Committee or representative. This is fine for accident reports you don’t want to keep privileged. But disclosing a privileged report waives its privileged status. Consider sharing some of the findings of the report verbally and on a limited basis to ensure that hazard information is communicated.
     

  5. Limit Disclosure to Need-to-Know: In limited cases, it is possible to disclose privileged information to third parties without waiving the privilege (i.e. a lawyer can show a privileged accident report to an outside auditor or expert). The third party shouldn’t necessarily get a copy of the entire document—only the portions needed to prepare the assessment. There should also be a written agreement stating the purposes of the disclosure; specifying that the third person can use the information only for those purposes; banning the third person from disclosing the information to others; and requiring the third person to destroy or return the information after the assessment.
     

The key is to keep prosecutors and OHS investigators from getting access to documents gathered during an investigation and shield sensitive documents you create. Of course, if you withhold a requested document from an investigator, you could be guilty of obstructing an investigation, but not if the document is privileged. Prevention of workplace accidents is always the key to safe workplaces but, when accidents do occur, involving lawyers as soon as possible and keeping accident reports and other internal records privileged is crucial.

 

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