Coal Age

OCT 2018

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48 www.coalage.com October 2018 legally speaking Accident Investigation? What Could Go Wrong? by avi meyerstein You may have some work to do to pre- pare for your next accident. How you handle the minutes, hours, and days fol- lowing an accident can determine what kind of mess you may be dealing with — or not — for years to come. Worst case scenario? A serious acci- dent harms people and spins off a world of pain. The government can cite you, issue penalties, and order you to change your operations. Government and pri- vate lawsuits can take years and cost millions. A false statement or document can send someone to jail. You can face disruptions to your business, customer relationships, employee morale, com- munity relations and public image. It's all on the line. Can you limit these risks? Absolute- ly. Focus on getting ahead of the curve. Engage experienced counsel early, at least to triage and strategize. I know it sounds self-serving, but, speaking with the right lawyer — even briefly — at the beginning is often the less expensive path. If you need counsel and wait too long, your legal team will be working overtime from day one. There are many incidents where your team can investigate successfully in-house if they've had the right train- ing and experience. Even then, it's wise to confirm that approach is appropriate in each case and plot a strategy upfront. Speaking with a lawyer experienced in Mine Safety and Health Administra- tion (MSHA) investigations can save you tons of time, pain and money later. At the bare minimum, that conversation should: triage the case, set up your inter- nal investigation as privileged and "at- torney-directed" (even if your in-house team will do most of the legwork), discuss litigation holds (evidence preservation), provide you with key resources (check- lists, forms, and a refresher on what to expect), and discuss an initial strategy. If the case is more serious than you thought, this conversation will bring in the right outside resources to guide ev- erything in the right direction. What's a serious case? Did someone die or suffer serious injuries? Was there significant media coverage? Did it shut down a critical part of your operations? Are you worried someone may have made a false statement, falsified a doc- ument, or tampered with the accident scene? If yes, get legal help. Stay two steps ahead. The best way to steer the investigation in the right di- rection is to be ahead of the curve. Be the first to gather and review relevant docu- ments and evidence, without disturbing the scene or violating a state or federal 103(k) order. Be the first to speak to the important witnesses if you can. Get any expert(s) up and running quickly. The goal is to minimize surprises and ensure government investigators do not jump to the wrong conclusions. All too often, they are under pressure to find answers quickly. Unfortunately, they often obtain information you don't need (e.g., asking witnesses to specu- late) and fail to obtain information you do need (e.g., not asking people about preventive measures taken). You can frequently head off these problems with a head start. Staying two steps ahead is difficult at times, impossible at others. But, you have some advantages. It's your mine. You're the first to know about the in- cident. Don't sit around and wait for someone else to start asking questions. Prepare for employee interviews. Interviews are critical to an investigation, but they also pose risks. Intentionally or not, someone may provide inaccurate information that confuses the case. In a tight-knit mining community, miners feel guilty and personally responsible for each other's safety. Many assume they could have prevented the accident. A vulnerable miner may provide false or misleading information that can confuse the search for truth and create liability. Witnesses need preparation. Before they go "on the record" with the govern- ment, traumatized co-workers need to sort through feelings of guilt and sep- arate fact from speculation. They need to know what to expect from a govern- ment interview. Before the government contacts them (possibly at home), they need to know their interview rights. They need to understand the impor- tance of telling the truth. What's in those files? Another early pitfall is documents. Control the flow of requests and production by establish- ing a single point-of-contact. Insist on requests in writing. Make required re- cords available immediately, but review other requested documents before pro- ducing. Try to reduce the burden and re- spond quicker by negotiating narrower requests (e.g., reduce time periods, sub- jects or people). Protect privileged, con- fidential and trade secret documents. When looking at documents, as- sess their risks. What do they say? Do they suggest you didn't sufficiently train the accident victim? Do they in- dicate failures to maintain, tag out or repair equipment involved in the ac- cident? Are the documents authentic? Did someone know of and ignore a hazard or violation? Did someone "fill in" missing records with new forms? Know these things before handing over the documents. Prepare and train. Like everything else, correctly handling MSHA investi- gations requires preparation and train- ing. Preparing means having emergency response policies that cover what you're required to do by law (such as MSHA's 15-minute reporting rule) and what you should do for your own good. Train your management team on what to expect. The early hours after an accident are critical. How you handle them will make all the difference. Avi Meyerstein is a partner with Husch Blackwell. He can be reached at Avi.Meyer- stein@huschblackwell.com.

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