Rock Products is the aggregates industry's leading source for market analysis and technology solutions, delivering critical content focusing on aggregates-processing equipment; operational efficiencies; management best practices; comprehensive market
Issue link: https://rock.epubxp.com/i/88019
These inter‐employee discussions create the potential for a business entity to inadvertently waive the privilege by disclos‐ ing attorney‐client communications to outsiders. If these dis‐ cussions result in confidential communications being disclosed to employees beyond those providing information to the attorneys, then the privilege might be waived. E‐mails are one of the primary culprits that result in waivers of the attorney‐client privilege. A company's confidential com‐ munications with its attorney are forwarded to employees who have no role in the legal advice – this waives the privilege. Another example involves the unintended "Reply All" e‐mail that results in confidential information being shared with per‐ sons who have no business receiving such information. The work‐product doctrine is a qualified immunity that pre‐ vents documents and tangible things prepared by a party or the attorney for trail from being produced during discovery. Work product includes factual material gathered in anticipa‐ tion of litigation that would reveal the theories, opinions or mental impressions of the attorney. As with the attorney‐client privilege, the work product immu‐ nity can also be waived. Work product can be waived by pro‐ ducing the material during discovery, or by making the materials available to third parties or the public. Here again the waiver potential for ESI and e‐mails illustrates a litigant's competing objectives during discovery. On one hand, a party must retain and produce all of the relevant ESI in its possession. On the other hand, a party must remain vigilant as to who is participating in attorney‐client communications or receives trial preparation materials, so as to not waive the privilege or immunity. Recommendations What steps can an operator take to comply with its duty to re‐ tain and produce ESI, while preserving its evidentiary rights? Basic guidelines and recommendations include: ■ Review existing document retention/ policies and determine whether you are complying with them. Determine whether the policies need to be updated. ■ If you receive a citation that you are considering contesting, ensure that you suspend all document destruction policies for anything that could be related to the citation. ■ Ask your attorneys for assistance in identifying potential sources of relevant information for discovery. ■ Identify key personnel to communicate with your attorneys. Provide these individuals with periodic reminders on e‐mail protocols for communications with your attorneys. ■ When sharing attorney‐client communications by e‐mail, use message headers (e.g. CONFIDENTIAL ‐ DO NOT FORWARD) to reduce the probability of inadvertent waiver. ■ Comply with Litigation Hold memos. The penalties for failing to comply with these instructions can be severe. E www.rockproducts.com Ohio Workers' Comp Alert Many of the new out-of-state employers entering Ohio as a result of developments in the oil and gas and frac sand industries are unsuspectingly operating without proper workers' compensation coverage, according to law firm Steptoe and Johnson. Without the proper workers' com- pensation coverage from the Ohio State Insurance Fund, these out-of-state employers are at risk of being non- complying employers and subject to significant liability for any non-complying claims. The first thing out-of-state employers need to know is that Ohio's workers' compensation system is different. Ohio is one of a few remaining monopolistic workers' compensation systems in the country. Every employer in the state must obtain workers' compensation coverage from the Ohio Bureau of Workers' Compensation (BWC) or obtain permission to be self-insured. Steptoe & Johnson was contacted by Kevin R. Abrams, chief of employer services for the BWC to discuss their concern for workers' compensation coverage for out-of- state employers. We have experienced some of the same concerns as the BWC in meeting with out-of-state employ- ers. Many out-of-state employers are not aware of the sig- nificant differences between Ohio workers' compensation coverage requirements and that provided by the out-of- state employer's private workers' compensation coverage. The common misconception is that the "All States En- dorsement" provided through an out-of-state employer's insurance policy will provide coverage for their employees while temporarily in Ohio. Unfortunately, Ohio R.C. 4123.54 significantly limits the workers' compensation coverage for out-of-state employees temporarily in Ohio. Basically, out-of-state employers must obtain Ohio workers' com- pensation coverage for their employees working tem- porarily in Ohio, unless their state extends the same reciprocal exemption for Ohio employers. If they do not, and most do not, extend the same reciprocal coverage for Ohio employees, Ohio will not exempt that state's employ- ers from requiring Ohio coverage for that state's employ- ees temporarily in Ohio. Another area of concern is the potential liability of general contractors for the workers' compensation liability of their sub-contractors. A number of out-of-state employ- ers are mistakenly relying on language in a subcontracting agreement to shield them from workers' compensation li- ability of the subcontractor's employees. In Ohio, Ohio R.C. 4123.01 transfers liability of a non-complying subcontrac- tor to the general contractor. While a properly drafted subcontracting agreement is possible to protect the gen- eral contractor from this type of liability, the general con- tractor must make certain the subcontractor has valid Ohio workers' compensation coverage. ROCKproducts • OCTOBER 2012 41