Incident Response
Joyce & Paul has extensive experience with preparing for and managing responses to both routine inspections and non-routine events such as government investigations, and environmental or other incidents and accidents. Our clients are provided the opportunity to train for incident response using materials that help clients understand the different types of government investigations that might occur, under what circumstances, and how to differentiate between agencies and the goals and duties that such agencies have when they arrive on the scene of an incident. For example, client personnel need to know the difference between investigators from the NTSB seeking information regarding the cause of an accident and how to prevent it from occurring, as opposed to EPA responders who may be in various roles including simple emergency response, or, under some circumstances, seeking to impose civil and/or criminal liability. Clients are also instructed on their rights when questioned by government authorities and the exposures that flow from such communications, and, as noted below, are taught how to best communicate in writing with government authorities so as to potentially protect materials submitted in response to government requests from adverse use by private parties.
Our clients are also trained regarding the issues surrounding the steep potential for civil private liability resulting from incidents. Specifically, they are trained regarding issues associated with communications and documentation, including how documentation provided in response to agency requests or demands should be prepared to minimize adverse impact in any civil litigation.
Our role, with respect to incident response, has been exercised in every circumstance from routine inspection assistance, to spills at various facilities, and during an armed raid by EPA agents on a facility where personnel were gathered in a cafeteria and sequestered from all of their offices and equipment, while the agents proceeded to seize computers and files and then conduct various testing at the facility. We were called upon to help manage the response while avoiding charges of obstruction of justice, and while ensuring that the rights of the company and the individuals were protected.
The activities during the raid were somewhat unusual, but do demonstrate an extreme circumstance where legal assistance on site and well-versed in environmental and criminal matters was invaluable. Most incidents are not of this magnitude, but even smaller spills require legal assistance to document and gather documentation regarding the incident in a manner that allows for certain information to be privileged, while pragmatically ensuring that necessary information is timely provided to emergency responders and regulators to avoid creating issues or otherwise aggravating these circumstances.
The firm also has experience with managing the legal aspects of root cause analysis investigations in the event that a client chooses to perform an internal investigation for operational improvement purposes following an incident. Working with available state and federal common law and statutory privileges (attorney-client privilege, attorney work-product doctrine, voluntary audit privileges, etc.), we can assist the client with determining the appropriate timing of internal investigations vis-a-vis ongoing or anticipated administrative, civil or criminal investigation, initiate the investigation to maximize the privilege claim, and guide operations personnel around common privilege waiver pitfalls that may be encountered in drafting and communicating initial and final findings associated with an incident. We also provide training to clients on the importance of taking action to address root cause analysis findings that result from incident investigations. |
