Protecting Your Investigation Perfecting Your Appeal - Legal Challenges For - Lisa... · Protecting Your Investigation Perfecting Your Appeal ASSE Symposium March 27, ... they respond

Protecting Your Investigation Perfecting Your Appeal

ASSE Symposium

March 27, 2013

© 2013 Walter & Prince LLP

We’re From OSHA and we’re here to help

Fire

Police

DOSH & BOI

EPA, AQMD, Etc.

Licensing Agencies

Media

District Attorney

PI Attorneys

You

Broker

Insurance carrier

Risk Managers

Attorneys

Experts

Investigators

Mother

Them vs. Us

Criminal Actions by BOI, DA

S&W Claims by Injured Employees

Civil Actions Against Third Party

With contract rights of indemnity and defense

Duty to Cooperate with Insurance Carrier


Why Protect Your Investigation?

Legal Liabilities: The Litigation Diamond

ER

DOSH EPA, etc.

Police, District

Attorney

Third Parties (Civil)

Employee & Kin

(S&W)


ER

DOSH EPA, etc.

Police, District

Attorney

Third Parties (Civil)

Employee & Kin

(S&W)

Purpose:

Protection of privacy in specified relationships

where privacy is required or expected…

Balanced against…

Judicial or governmental need to seek the

truth.


Legal Privileges

California Evidence Code § 950 et seq.: Communications presumed confidential.

Clergy – Penitent

Husband - Wife

Physician – Patient

Psychotherapist – Patient

Sexual Assault Counselor - Victim

Domestic Violence Counselor – Victim

Official Information – ID of Informer

And…


Legal Privileges

California Evidence Code § 950 et seq.

(cont’d)

Attorney – Client

(includes corporations)


Legal Privileges

Who is NOT INCLUDED?

Broker - Client

Dual Employers (General – Special)

Landlords – PM’s, General Contractors

General Contractors - Subs


Legal Privileges

Attorney – Client Communications

Attorney Work Product


Attorney – Client Protections

Evidence Code § 952

“Information transmitted”

Any form of communication which carries

with it a reasonable expectation of privacy

Face-to-Face Discussions

Written Correspondence

Telephone Calls, E-mails, text messages




“no third persons … except…

those who are present to further the interest

of the client in the consultation…”

“… or those to whom disclosure is

reasonably necessary for the transmission

of the information or the accomplishment of

the purpose for which the lawyer is

consulted…”




Includes

legal opinions

advice



Civil Procedure Code § 2018.020:

“It is the policy of the state to do both of the following:

“(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. [and…]




“(b) Prevent attorneys from taking undue

advantage of their adversary’s industry and

efforts.”




Attorney’s own notes

Investigation reports, with comments and

opinions

Notes of witness interviews, with comments

and impressions

[Absolute privilege]





Not discoverable unless denial of discovery

will

Unfairly prejudice another party, or

Create injustice.

[Qualified protection]




Examples of Qualified Protection

Scientific tests and test reports

Witness statements

Photographs – some are worth protecting

from disclosure




Not a privilege

Protection is not as strong as legal privileges

Arises from contract

Obligation to cooperate with carrier

Reports and communications between an

insured and underwriting, claims adjusters,

investigators, etc.


Insured – Carrier Confidentiality

Attorney – Client Communication

Privilege:

Applies to initial contact with attorney, if…

Perfected by formal retention of attorney

AWP protection is triggered by

Reasonable anticipation of litigation

Retention of Attorney in reasonable time


Creating The Privileges

Oral retention sufficient

Formal written agreement best

Client – “Agent” agreement authorizing

communication with the attorney


Creating The Privileges

Client

Management personnel

“Agents of the party”

Attorney

All staff

Retained Investigators

Retained Experts and Consultants


Who Is Privileged?


The Attorney Work Product Triangle: Creation Flow

Client

Attorney Investigator,

Expert


The Attorney Work Product Triangle: Information Flow

Client

Attorney Investigator,

Expert

Client

Attorney

Investigators

Experts

Keep the circle closed


Create A Working Group

Failing to create an Attorney – Client

relationship

Sharing findings outside the circle

Joint investigations

Witness statements, not interview notes


Destroying The Privileges

You have a pretty good case, Mr. Pitkin. How much

justice can you afford?

Deadlines:

To hold informal conference with DOSH:

10 calendar days after receipt of citations

To file appeal:

15 working days from receipt

By submission of written appeal forms

By telephone to 1-916-274-5751


Perfecting Your Appeal

Deadlines:

Written Appeals – 10 Calendar Days!

Form available on-line at:

www.dir.ca.gov/oshab/appealform.pdf



http://www.dir.ca.gov/oshab/appealform.pdf

Pre-Citation Interactive Process (AB 2774)

No less than 15 days before issuance of serious citations…

DOSH to provide opportunity to explain why citation…

Should not be issued as serious




Len Welsh:

The purpose of the interactive process is to

issue fewer, more sustainable, serious

citations




Chief Counsel Amy Martin:

Information in the 1BY form will be considered admissions against interest

If DOSH does not consider the 1BY, the citations will not be affected




Form 1BY

Front side: DOSH provides:

Regulation cited

Charging allegations




Form 1BY

Back side: Employer to provide:

Training relevant to the hazard or similar hazards

Procedures for discovering, controlling and correcting the hazard or similar hazards

Supervision of employees exposed to the hazard

Communication about safety and health rules and programs

And…




Form 1BY

Back side: Employer to provide:

The employer’s explanation of the circumstances

Why the employer believes a serious violation did not exist

Why the employer believes its actions were reasonable and responsible so as to rebut the presumption of violation




Form 1BY

Back side: Employer signs, verifying that

contents are true and any documents

provided are accurate




If Employer Does Not Engage…

“…shall not be barred from presenting that information at the hearing…”

“…and no negative inference shall be drawn.”




If Employer Does Engage But Later Modifies the Information in the 1BY the Board:

“…may draw a negative inference from the prior inconsistent factual information.”



UPDATE – March, 2013:

Len Welsh:

Exchange of information may still be of

benefit.

Employers should be very cautious in how

they respond to the request for information.

Never use the form.




Factors to consider: Was the citation timely issued?

Was there a violation of the cited reg.?

Do I have a defense to the citation?

Is the penalty appropriate?

How can I abate the cited condition?



Is the citation related to an employee injury?

Is the citation related to a fatality?

Is a criminal investigation possible/likely?

Will the citation impact my ability to contract for

future work?

Are future citations possible/likely?

Repeat or Willful



Other factors:

A permanent record (IMIS)

S&W Liability



Affirmative Defenses

Independent employee act

No consent to inspection

Lack of employer knowledge of serious

violation

Logical time


Photographs of an accident scene before clean

up

Photographs of an accident scene taken a

month later


Pop Quiz: Privilege IN or OUT?

Employee statements, signed and dated the

day of the accident

Notes of employee interviews



Investigation report completed 6 months before

retaining an attorney

Investigation report by consultant retained by

attorney



Memo of meeting with attorney to discuss investigation findings, including impressions, action plans

Ditto – without mention of attorney’s comments or advice



When does time to appeal start running?

How long do you have to appeal?


Pop Quiz:Appeals

Name two affirmative defenses.


Pop Quiz: Appeals

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 © 2013 Walter & Prince LLP

Resources

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

Documents

Protecting Your Investigation Perfecting Your Appeal - Legal Challenges For - Lisa... · Protecting Your Investigation Perfecting Your Appeal ASSE Symposium March 27, ... they respond