- Time Is Of The Essence
The sooner you can initiate your investigation after an accident the better. Investigation delays may result in evidence being lost, tampered with, or otherwise spoiled. Common sense tells us that witness memories fade over time and research has supported that premise.[1] Where possible, initial witness interviews should be recorded for accuracy and preservation of details. If critical witnesses are unidentified bystanders or third parties, their identities may be impossible to verify after the fact.
In addition to witness statements, the preservation of documentary evidence is critical. For example, incidents captured by surveillance video require prompt action to preserve footage that may be recorded over in the absence of action. With video in particular, inaction can result in lost evidence or even exposure for spoliation of evidence. If an entity fails to preserve video, there is a risk the jury will be instructed to presume it was favorable to the plaintiff.
- Protection of Statements
Work product protection of witness statements originally applied only when taken by an attorney, but discovery rules in Oregon and Washington now extend the protection to non-attorneys alike. See Washington CR 26(b)(4)[i] and Oregon ORCP 36 B(3)(a)[ii]. In Washington though, there is an exception to work product when records are “created during the ordinary course of business[2]. Generally, an investigation at the direction of an attorney is more likely to be protected as privileged or work product communications, or both.
- Expert Retention
For certain losses or accidents, such as fires and fatalities, it may be necessary to immediately engage an expert for contemporaneous investigation and preservation of evidence. In multiparty cases demanding unique expertise, there may be just a handful of local experts. In that case, fast action may be needed to secure a preferred expert before they are conflicted out by another party.
- Utilize Public Resources
Resources are available from institutions such as Occupational Safety and Health Administration (OSHA), National Safety Council, and local agencies. While larger organizations may have customized investigation policies, smaller institutions should consider consulting the aforementioned institutions for training materials and investigation checklists.
- Request Outside Information
Prior to litigation, there is no subpoena power to compel the production of records related to an accident. During this phase, public records requests may be an effective means of gathering information. 911 recordings, police reports, permits, OSHA investigations, fire department reports, and more may be obtainable via public records requests. Note that for major accidents, law enforcement may refuse to produce records before the investigation is completed.
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[1] Helen M Paterson, Celine van Golde, Chris Devery, Nicholas Cowdery & Richard Kemp (2018) iWitnessed: Capturing Contemporaneous Accounts to Enhance Witness Evidence, Current Issues in Criminal Justice, 29:3, 273-281, DOI: 10.1080/10345329.2018.12036102; Julia Lifanov, Juan Linde-Domingo, Maria Wimber. Feature-specific reaction times reveal a semanticisation of memories over time and with repeated remembering. Nature Communications, 2021; 12 (1) DOI: 10.1038/s41467-021-23288-5
[2] Doehne v. EmpRes Healthcare Management, LLC (2015) 190 Wash.App. 274, 360 P.3d 34
[i] Washington CR 26(b)(4) Trial Preparation: Materials. Subject to the provisions of subsection (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including a party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this section, a statement previously made is,
(A) a written statement signed or otherwise adopted or approved by the person making it, or
(B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
[ii] ORCP 36B(3)(a) Materials subject to a showing of substantial need. Subject to the provisions of Rule 44, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection B(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only on a showing that the party seeking discovery has substantial need of the materials in the preparation of such party’s case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.