Mythbusters: You can’t share information about a privileged investigation
Legal professional privilege is an issue that is often misunderstood. A common myth is that it prevents information sharing within the business and that you would only do an investigation under the cover of privilege if you have something to hide. In fact, there are very good reasons for doing certain investigations under the protection of legal privilege, particularly when you don’t know what you are going to find and where they are significant legal or regulatory risks. Learnings from a privileged investigation can still be shared within the business and the workforce – it just needs to be done in a way so that the privileged information is still treated as confidential.
Legal privilege is not an automatic right. The starting point is that investigation reports and supporting documents are not protected by privilege. To get the protection of legal privilege, documents must meet the dominate purpose test. That test asks whether the document was prepared for the sole or dominate purpose of providing legal advice or for use in litigation. If, for example, an investigation report is prepared for the main purpose of enabling the business to make a commercial decision, legal privilege will not apply.
Doing an investigation under legal privilege has a number of benefits. For example, a privileged investigation will allow you to give thorough consideration to how you respond to the investigation findings, with a low risk of the investigation report being required to be produced to a regulator or being discoverable in court proceedings.
It is critical, following an investigation into a safety incident, that learnings are shared within the business in order to improve processes and procedures and ensure the same or a similar incident does not occur again. It is true that legal privilege can be lost (or ‘waived’ in legal speak) if you treat the document or information in a way that is inconsistent with the privilege. When you share learnings about an incident investigation done under privilege (and there are good reasons why you should), you need to do it in a way that keeps the privileged information confidential. There are practical ways to manage this and your legal team (in-house or external) can give advice on how to achieve the dual outcomes of sharing learnings whilst maintaining privilege over the investigation findings.
The next time you have a serious safety incident or an incident which might expose the business to legal or regulatory risks, consider whether it would be helpful to conduct the investigation under privilege. A privileged investigation can be set up through your in-house or external legal team.
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