Preserving the confidentiality of post-incident investigations
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Richard A. Schwartz Vorys, Sater, Seymour and Pease LLP
Imagine this scenario: Control of the well has been lost. The BOPs have not contained the well. People have been hurt. Oil is running into the Gulf.
If you investigate, can you keep the investigation report private? Yes. Can you keep the substance of the employee interviews private? Yes. Can you keep prevent employees from talking about the events? It depends.
Employers must be careful about imposing confidentiality on employees related to internal investigations. Operating company officials would be well advised to keep some of the key considerations, outlined below, in mind if they wish to keep an investigation private.
Most notably, there have been recent efforts by the National Labor Relations Board (NLRB) and Securities and Exchange Commission (SEC) to preclude employers from requiring confidentiality in internal investigations.
Investigations provide the company with a means to privately assess what went wrong and why; potential remedial actions; and possible liability and damages to others. They are also a potential road map for making a case against the company. Consequently, if the company conducts an investigation, it should first determine if it intends for the investigation to be privileged.
To keep an internal investigation confidential, keep in mind these four basic principles.
First, privileged investigations must be conducted by or under the direction of an attorney.
Second, the investigator (preferably an attorney) must know (and realize) who their client is. Communications between a lawyer and someone who is not a client are not protected. Who the client is could vary based on the applicable law. For fixed platforms on the outer continental shelf, the law of the adjacent state applies. For maritime claims in state court, state privilege law applies. For maritime claims in federal court, federal privilege law applies.
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