OSHA can obtain and use the results of the internal safety audits you perform identifying the weaknesses in your safety programs as Exhibit A in building a case against you. One way to shield these records from OSHA officials—as well as trial lawyers representing accident victims suing your company—is to use the so called attorney-client privilege. The privilege applies when information is provided by an attorney to a client in anticipation of litigation or legal proceedings.
HOW TO USE THIS TOOL
This Model Memo illustrates how a company could avail itself of the privilege by framing internal audits as a request for legal advice from an attorney. In this case, a company wants its attorney opinion on whether the company’s emergency response plan measures up to OSHA standards and, if not, what changes should be made. The attorney’s response—which can be either direct or provided through a third party auditor engaged by the attorney—could then point out current violations of OSHA standards by the company without having these findings become evidence in an OSHA proceeding.