OSHA Investigations Are Your Safety Audits Protected
March, 2007
The self evaluation or self critical analysis privilege is intended to encourage candid self evaluation without fear that your safety audits will later be used against you. The privilege was first raised in a malpractice action in which the reports from a hospital medical review committee’s investigation of a patient’s death were held to be privileged. The court reasoned that confidentiality would facilitate the free flow of information. However, courts do not apply this privilege to requests by governmental entities, such as OSHA, for safety audits.
In Reich v. Hercules, Inc., 857 F.Supp. 367 (D.N.J. 1994), the Occupational Safety and Health Commission (“Commission”) addressed the self critical analysis privilege. OSHA investigated an explosion at the Hercules New Jersey plant in 1989 and issued citations which were settled in 1991. In March 1993, the Secretary commenced a new inspection including a follow-up to determine whether Hercules had abated the previous violations. The Secretary issued an administrative subpoena seeking safety audits conducted by Hercules during the years 1987 through 1992. Hercules opposed the subpoena claiming the self critical analysis privilege, the attorney-client privilege, and the attorney work product doctrine. The Secretary brought an action in the district court to enforce the subpoena.
Hercules argued that the safety audits should be protected as the work product of an attorney prepared during or in anticipation of litigation. Hercules submitted affidavits from its outside attorney and two in-house counsel stating that after the 1989 accident and OSHA investigation, they informed plant managers that future safety evaluations were to be directed to them in order to be considered confidential and privileged attorney-client communications or attorney work product. Hercules claimed that all post 1989 safety evaluations were done at counsel’s behest and direction for purposes of litigation and settlement. One of the affiants stated that a number of the audits would have been performed routinely notwithstanding the OSHA inspection and not under the attorney client or work product privilege.
Hercules also argued the materials sought by the Secretary deserved protection and to require disclosure would defeat the public’s interest in having companies voluntarily work to enhance safety in their operations. The court recognized that the argument did have appeal but declined to accept the position. The court stated that the privilege has been recognized in private litigation, but has regularly been rejected in cases where documents are sought by a governmental agency. The court said the public interest is served by allowing the Secretary to proceed freely in his investigation of potential OSHA violations.
The court found that Hercules failed to show that the materials at issue were prepared in a fashion other than the ordinary course of business. A party may not shield facts from discovery merely by combining them with an attorney’s core work product. An audit regularly performed by a party does not become attorney work product simply because the party’s attorney directs that future audits be turned over to him for his use. The court stated that a different conclusion might be warranted if the audits were begun at the request of Hercules’ counsel for the purpose of advising Hercules.
The Secretary of Labor has pursued work product in other cases. In Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252 (3d Cir. 1993), an employee bartender telephoned OSHA complaining about skin, eye, and throat irritation from chemical emissions at her work station. An exchange of letters ensued between OSHA and the employer, and Bally’s general counsel became involved and decided Bally’s should retain a technical expert to test emissions from the dishwasher. The expert prepared a report of his findings.
OSHA requested a copy of the report, and Bally’s asserted it was work product. OSHA subpoenaed the report, and Bally’s responded by letter asserting work product. OSHA abandoned its efforts to enforce the subpoena, but issued citations to Bally’s. Bally’s contested the citations asserting a claim of work product. The administrative law judge determined that the report was not work product because it contained purely technical information which required no legal interpretation. The judge found that OSHA and the union were entitled to the report, and had demonstrated a “substantial need” because Bally’s had taken the dishwasher out of service following the tests, not giving OSHA an opportunity to test the machine themselves. Bally’s petitioned for review.
The Commission reversed the administrative law judge’s decision in all respects and vacated the citations. The Commission found that the report was a document prepared in anticipation of litigation by the expert for Bally’s attorney. Further, Bally’s reinstalled the dishwasher to conduct its tests and OSHA never established that Bally’s could not or would not reinstall the dishwasher for OSHA to conduct its own tests. The Secretary appealed to the United States Court of Appeals.
The Appeals Court stated that only by looking to the state of mind of the party preparing the document, or the party ordering preparation of the document, can the purpose be determined. That individual’s belief that litigation will result is the initial focus of the inquiry into whether the report was prepared “in anticipation of litigation.” The work product rule does not apply to materials assembled in the ordinary course of business, or for other non-litigation purposes. The court stated that substantial evidence supports the Commission’s determination that the report was prepared in anticipation of litigation.
The court stated that to determine whether a particular document was prepared in anticipation of litigation, the test is whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.
The learning points here are that even though safety audits arguably may be protected from disclosure in civil litigation because of the self critical analysis privilege, they will not be protected from disclosure during an OSHA investigation unless the work product doctrine applies. Therefore, if you routinely perform safety audits, you must also establish procedures to take all necessary corrective action disclosed by the audit in a timely manner. Most importantly, if an OSHA investigation occurs, contact John T. Groark (jgroark@clausen.com) immediately to assist in the investigation and direct all necessary testing and reporting.
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