From Event to Action: Accelerate Your Decision Making with Real-Time Automation
Crisis Management
1. The Aftermath of a Crisis:
Are You Prepared?
August 15, 2012
Walter & Prince LLP
Fred Walter
www.walterprincelaw.com
2. The Scene
It’s 30 minutes since a massive explosion ripped
through your part of a major construction site. Fire
rescue and paramedics are on scene attending to
the injured. Most of them appear to be your
employees. You are pretty certain some of them
have died.
Walter & Prince LLP – 2012
3. The Scene
Your foreman says that three people are at the
front gate and want to talk to you: A Cal/OSHA
inspector, an Assistant DA and an attorney who says
he represents the family of one of your employees.
What do you do?
Walter & Prince LLP - 2012
4. The Scene
First thing: Take a deep breath.
Second thing: Know that you will have to make
choices, and that you will be second-guessed.
Walter & Prince LLP - 2012
5. The Scene
“The time to learn how to handle a crisis is not during
one.”
-- Lisa Prince
“Disaster Psychology” – Paul Gantt, et al.,
Professional Safety, August 2012
Walter & Prince LLP - 2012
6. The Legal Context: Them vs.
Us
Fire You
Police Broker
DOSH & BOI Insurance carrier
EPA, AQMD, Etc. Risk Managers
CSLB Attorneys
Media Experts
District Attorney Investigators
PI Attorneys Mother
Walter & Prince LLP - 2012
7. Legal Liabilities:
The Litigation Diamond
Third Parties
Employee Police,
& Kin
(S&W) ER District
Attorney
DOSH,
EPA, etc.
Walter & Prince LLP - 2012
8. Constitutional Rights
Right to Demand a Warrant
(4th Amendment – applies to all)
Right to Remain Silent
(5th Amendment – individuals only)
Due Process / Equal Protection
(13th Amendment and Calif. Constitution)
Right to a Fair Hearing (same)
Walter & Prince LLP - 2012
9. Privileges Against
Disclosure of Information
I
Attorney – Client Communications
Extends to all forms of communication
Applies to communication by those engaged by the
attorney
Walter & Prince LLP - 2012
10. Privileges Against
Disclosure of Information
II
Attorney Work Product
Key Phrase: “in contemplation of litigation”
All investigation materials
Reports, letters, e-mails, notes, calculations
Walter & Prince LLP - 2012
11. Attorney Work Product Triangle
Client
Attorney Investigator
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12. Privileges Against
Disclosure of Information
Limited or no coverage for:
Discussions with brokers
Photographs
Written / recorded witness statements
Walter & Prince LLP - 2012
13. At the Start
Decide Level of Protection Needed
Appropriate to the Event
Appropriate to the Potential Liabilities
I’d Like to Phone A Friend
Assign Roles/Responsibilities
Pre-determined to extent possible
Agencies, Employee Liaison, Media
Create a Working Group
Walter & Prince LLP - 2012
14. At the Start
Use your Attorney – Client privileges
Consider Using Specialists
Consultants
Investigators
Keep records required by Cal/OSHA, others
separate from internal
audits/reports/memos/notes
Walter & Prince LLP - 2012
15. The Working Group
As Small As Possible
Specific Roles
Supervision of the Investigation
Media Contact
Family Contact
Agency Liaison
Frequent Check-ins
Walter & Prince LLP - 2012
16. Protecting the Working
Group
Confidentiality Protections will apply to:
Client representatives
Attorney-retained consultants
Insurance claims representatives
Based on contractual obligations, not attorney-
client protections
Walter & Prince LLP - 2012
17. Protecting Working Groups
No protection for:
Broker
Broker’s representatives
Consultants… unless specifically retained to
assist counsel in the investigation
Walter & Prince LLP - 2012
18. Issues
Responding to Demands to Enter / Interview /
Warrants
Responding to the Families
Responding to the Media
Abatement
Walter & Prince LLP - 2012
19. Permission to Enter
DOSH, other agencies need permission
to enter
(Police in emergency do not)
Pros/Cons of Denying Permission, Demanding
a Warrant
Negotiating trade-offs
Walter & Prince LLP - 2012
20. Responding to the Family
Initial contact from as high in the company as
possible
Should we say we’re sorry?
Should we attend the funeral?
Who should attend?
Scholarship Funds and Donations
Walter & Prince LLP - 2012
Walter & & Prince LLP2012
Walter Prince LLP - - 2012
21. Responding to the Media
One spokesperson, the higher the better
Create a short message and stick to it
No speculation, no opinions
If you don’t know, say so
Never say “No comment”
Try not to be led
No sunglasses
Walter & Prince LLP - 2012
22. Abatement and OPU’s
Is Abatement an Admission of Fault?
Do we have to agree with DOSH’s
expectations on abatement?
Preserving the Evidence
Orders Prohibiting Use
Beclear on the scope of the OPU
Meet with the DM ASAP
Walter & Prince LLP - 2012
23. Protecting Your
Investigation:
Pros / Cons of Statements
PRO CON
Immediate Lack of reflection
recollection of events Prone to blame,
Recollections firmly a assumptions,
part of the “record” speculation
Difficult to revise
Discoverable
Walter & Prince LLP - 2012
24. Investigation:
Pros / Cons of Interview
Notes
PRO CON
Not discoverable if If not immediate
within attorney-client recollection, memory
privilege may fade
Witnesses not locked May be influenced by
into first impressions “cross-
contamination” from
other witnesses
The grief counselor
dilemma
Walter & Prince LLP - 2012
25. Written Reports
Do I prepare a written report?
When do I NOT prepare a report?
What do I include?
What do I leave out?
Walter & Prince LLP - 2012
26. Disclosure of Reports to
DOSH:
Scope of disclosure to DOSH is defined by Title
8 CCR sec. 1509 and sec. 3203
Walter & Prince LLP - 2012
27. Disclosure of Reports To DOSH:
Verification that an investigation was done,
Identity of the investigator,
Any unsafe conditions / practices found in the
investigation, and
Actions taken to remedy them
Walter & Prince LLP - 2012
29. Disclosure of Reports To DOSH:
Requirement to include
opinions or conclusions about causation
Walter & Prince LLP - 2012
30. Final Thoughts…..
• Each crisis is different. That’s why it’s a Crisis
• Understand that you will have to be flexible
• Not knowing exactly what to do is OK
• There are no perfect answers, just better ones
• Breathe – slow down the process
Walter & Prince LLP - 2012
31. Resources
Walter & Prince LLP
www.walterprincelaw.com
E-zines, articles and further links
http://www.caloshablog.com/
Erratic blog on timely issues
Fed/OSHA Establishment Search
www.osha.gov/oshstats/index.html
Cal/OSHA Regulations
www.dir.ca.gov/samples/search/query.htm
Cal/OSHA Enforcement (DOSH)
www.dir.ca.gov/DOSH/dosh1.html
Cal/OSHA Appeals Board
www.dir.ca.gov/OSHAB/oshab.html
Walter & Prince LLP - 2012