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

Police

DOSH & BOI

EPA, AQMD, Etc.

CSLB

Media

District Attorney

PI Attorneys

You

Broker

Insurance carrier

Risk Managers

Attorneys

Experts

Investigators

Mother


Legal Liabilities: The Litigation Diamond

Third Parties

Police,

District

Attorney

DOSH,

EPA, etc.

Employee

& Kin

(S&W) ER


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



II

Attorney Work Product Key Phrase: “in contemplation of litigation”

All investigation materials

Reports, letters, e-mails, notes, calculations


Attorney Work Product Triangle

Client

Investigator Attorney



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 LLP - 2012 Walter & Prince LLP - 2012 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

Be clear on the scope of the OPU

Meet with the DM ASAP


Protecting Your Investigation:

Pros / Cons of Statements

PRO

Immediate recollection of events

Recollections firmly a part of the “record”

CON

Lack of reflection

Prone to blame, assumptions, speculation

Difficult to revise

Discoverable


Investigation: Pros / Cons of Interview

Notes PRO

Not discoverable if within attorney-client privilege

Witnesses not locked into first impressions

CON

If not immediate recollection, memory may fade

May be influenced by “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

Walter & Prince LLP - 2012 Walter & Prince LLP - 2012

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


http://www.walterprincelaw.com/

http://www.caloshablog.com/

http://www.osha.gov/oshstats/index.html

http://www.dir.ca.gov/samples/search/query.htm

http://www.dir.ca.gov/DOSH/dosh1.html

http://www.dir.ca.gov/OSHAB/oshab.html

Crisis Management

Technology

Transcript of Crisis Management