How to Leverage Attorney-Client Privilege for Effective Incident Investigations

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. Yet legal considerations are often crucial during this timeframe when 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 paper discusses good practices for incorporating attorney-client privilege guidelines into a facility’s incident investigation management system. Examples will be presented that illustrate the effective leveraging of attorney-client privilege, the benefits it can provide to incident investigation, and the role of legal counsel in the process.