Crisis Management

The Aftermath of a Crisis:
Are You Prepared?

August 15, 2012
Walter & Prince LLP
Fred Walter
www.walterprincelaw.com

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

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

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.


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


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

Legal Liabilities:
The Litigation Diamond

Third Parties

Employee Police,
& Kin
(S&W) ER District
Attorney

DOSH,
EPA, etc.


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)


Privileges Against
Disclosure of Information
I
Attorney – Client Communications
 Extends to all forms of communication
 Applies to communication by those engaged by the
attorney


Privileges Against
II
Attorney Work Product
 Key Phrase: “in contemplation of litigation”
 All investigation materials
 Reports, letters, e-mails, notes, calculations


Attorney Work Product Triangle

Client

Attorney Investigator


Privileges Against

Limited or no coverage for:
 Discussions with brokers
 Photographs
 Written / recorded witness statements


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


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


The Working Group

 As Small As Possible
 Specific Roles
 Supervision of the Investigation
 Media Contact
 Family Contact
 Agency Liaison
 Frequent Check-ins


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


Protecting Working Groups

No protection for:

 Broker
 Broker’s representatives
 Consultants… unless specifically retained to
assist counsel in the investigation


Issues

 Responding to Demands to Enter / Interview /
Warrants
 Responding to the Families
 Responding to the Media
 Abatement


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


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 LLP2012
Walter Prince LLP - - 2012

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


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


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


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

Written Reports

 Do I prepare a written report?
 When do I NOT prepare a report?
 What do I include?
 What do I leave out?


Disclosure of Reports to
DOSH:

Scope of disclosure to DOSH is defined by Title
8 CCR sec. 1509 and sec. 3203


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



What’s missing?



Requirement to include
opinions or conclusions about causation


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


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


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