All companies have sensitive safety documents in their files that they don't want to reveal to people on the outside. For example, maybe you've prepared an internal audit report highlighting possible safety violations at your company. The last thing you want is for OSHA to lay its hands on that document. But guess what? When and if OSHA inspectors come to your facility, they're going to be seeking to unearth this and other compromising documents. The same is true of attorneys who sue your company because of injuries or illnesses to workers.

Luckily, there's a way to shield internal safety documents from prying eyes. It involves using something called the attorney-client privilege, a legal doctrine designed to keep communications confidential. This series will explain how the privilege works and what you need to do to take advantage of it.

The Attorney-Client Privilege. . .

The reason privileges exist is because society has an interest in keeping certain communications confidential. For example, patients should be allowed to tell their doctors private and sensitive information about their health without fearing that it'll be revealed to others. So there's a doctor-patient privilege.

There are privileges covering other sensitive relationships, including priests and penitents and, of course, attorneys and clients. Our system of legal representation can't work unless clients know they can speak in candor to their attorneys without fear of being "turned in."Thus, there's a privilege protecting the confidentiality of attorney-client communications.

. . . And Its Limits

The attorney-client privilege isn't automatic. To take advantage of it you must involve your attorney in the creation of the documents you want to protect.

But be careful. The common misconception is that you can protect the results of a safety self-audit just by having your general counsel conduct or oversee it. But if the audit was conducted as part of your regular business operations - for example, because your company has a policy for conducting audits every six months - as opposed to in preparation for litigation or a legal proceeding the results of the audit won't be protected.

Moreover, the privilege doesn't protect facts revealed during an audit, such as the fact that a machine guard was not attached to a piece of equipment at the point of operation. "The privilege only protects legal advice based on the facts, not the facts themselves," explains Washington, DC, OSHA attorney Robert Gombar.

Finally, the privilege can also be inadvertently waived, or lost, if you're not careful. The attorney-client privilege is a lot like fine china, says Gombar: "It's difficult to make and easy to break."

Conclusion

How do you actually use the attorney-client privilege to shield safety audits from disclosure? We will answer that question next week.

THE CANADIAN PERSPECTIVE

The general principles set out in the above article apply in Canada, but with some differences. In Canada, there are actually two privileges that can be used to shield internal safety documents from disclosure:

1. The Contemplated Litigation Privilege

The first privilege is called the "contemplated litigation privilege." "When a company or individual faces a reasonable risk of being prosecuted, the would-be defendant needs to assess its risks and determine its strategy," notes Toronto OHS lawyer Cheryl Edwards (Stringer Brisbin Humphrey, Management Lawyers, www.sbhlawyers.com). In the context of a workplace incident, this might involve making a candid assessment of all of the things the company did wrong. "For example, the company will want to gather detailed information to assess its prospects of raising a due diligence defence. It may also amass materials that wouldn't help its defence in court," Edwards explains.

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," says Edwards.
An internal accident report can be covered by the privilege if it's prepared in anticipation of litigation, including an OHS prosecution. 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; and
• At the time the report was created, a lawsuit must be actually underway or "reasonably contemplated."

Practical pointer: If you think there's a good chance that the incident 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. When is it "reasonable" to anticipate an OHS prosecution? Unfortunately, there's no bright-line answer. But Edwards suggests certain red flags:

• The incident involves a fatality and/or serious injury;
• You see OHS investigators taking photos, statements and gathering other evidence at your workplace; and
• The OHS agency issues orders in relation to the incident.

2. The Solicitor-Client Privilege

The second kind of privilege you can use to shield accident reports is the solicitor-client (or as it's sometimes called, "legal advice") privilege described briefly above. Unlike the "contemplation of litigation" privilege, "solicitor-client" privilege applies only if you get your lawyer involved. This is something you might do anyway if you're expecting to be prosecuted. So, in a sense, the two privileges merge.

Conclusion

Next week, we'll explain how to establish the Solicitor-Client privilege.

SAXCIES PROFILE

John M. McLarty of Kerr Concrete Pipe, Saxcie Winner for Best New Safety Product.

WINNER FOR BEST NEW SAFETY PRODUCT:
Kerr Concrete Pipe: Propane Nozzle Lock

Criteria: The Best New Safety Product is awarded to an innovative product or service that effectively enhances health and safety in and out of the workplace, as voted by the members of SafetyXChange.

The Winner: Kerr Concrete Pipe's Propane Nozzle Locking System

Profile: Best New Safety Product is the only Saxcie decided by the vote of SafetyXChange members. This year, the members chose a simple but ingenious propane nozzle locking system developed by Kerr Concrete Pipe.

Like many great safety products, the nozzle was the product of a safety breakdown. A forklift operator pulled away from a refuelling station without remembering to disconnect the nozzle. It was the second such incident in less than a year and Kerr determined to do something about it.

Their concept was "to take the human factor out of the equation," i.e., make it impossible for forklift operators to drive off after refuelling unless and until they disconnect the nozzle. The Kerr team's solution was simple: Secure the forklift key into the nozzle lock assembly and make it impossible to remove the key until the propane nozzle is disconnected and locked shut, thereby ensuring that the driver can't drive the forklift away until the disconnecting and locking procedure has been completed.

Not surprisingly, the implementation of the new nozzle locking system has eliminated all incidents of employees driving away from refuelling stations while the propane filling nozzle was still attached to the tank.

So, to the creators of the nozzle locking device, SafetyXChange offers its hearty congratulations and thanks for making a meaningful contribution to the safety of the workplace.

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