Every day companies deal with an ongoing safety analysis of their own products. These Safety Teams are routinely interdepartmental. The Safety Teams must consider design changes, manufacturing issues, potential recalls, potential claims or lawsuits and overall consumer safety. Sensitive information is always shared by the Safety Team. Companies believe (or hope) that the process, including any documents and information, is all confidential until a lawsuit ensues and much of the Safety Team’s work is revealed. What can you do to preserve the privilege? How do you safeguard this information? This is not an unusual scenario. However, it is one that companies routinely fail to protect themselves from.Useful privileges for Safety Teams are attorney-client privilege, work product doctrine, and self-critical analysis or self-evaluation privilege. Attorney-client privilege and work product doctrine protect communications with attorneys and work done in anticipation of litigation, while the latter privilege is one that protects self-assessments to encourage candid, thorough safety risk examinations without fear of them negatively impacting subsequent litigation.
Regardless of the privilege used or the differing jurisdictional standards employed, the following steps will help manufacturers preserve privilege through proactive means before a claim arises.
Nothing guarantees the application of a privilege, but these prophylactic steps increase a company’s odds to protect its internal deliberations. Doing so will help to alleviate the threat and magnitude of possible product liability claims. For more strategies to proactively protect your company from product liability claims, read Preempting and Mitigating Product Liability Claims, a Practical Law Practice Note.