When engaging an outside consultant to perform assessments of health and safety issues and data, communication between the consultant and on-site managers is vital to generating meaningful and useful information. However, this communication is often hindered by a concern that the information generated may later be disclosed and used against the site by regulators, insurers, or opposing parties in agency enforcement, civil litigation or criminal prosecution.
To balance these fears with maintaining a high quality of technical work it is frequently useful to seek ways to have the communication protected the Attorney-Client privilege. Attorney-client privilege protects communications about technical information when the communication is made for the purposes of seeking and providing legal advice. By communicating under attorney client privilege, assessments can be communicated without creating a "road map" for regulators. Further, review by attorneys, well versed in health and safety law and legal risks, can lead to reports which are formulated in a manner that minimizes potential issues during litigation if asserting attorney client privilege over the communication ends up not being successful. Opposing lawyers are certain to challenge most assertions of the attorney client privilege (because the result is that they don't get to see or use information they think might help their side) and courts can be somewhat unpredictable in which communications they believe warrant the privilege and which do not. It cannot be said with enough emphasis, that these issues are increasingly important as society shifts to email, where less review of the content of the message is generally performed, as a preferred method of communication.
