Protecting yourself from misinterpretations in legal matters

By |  February 24, 2016
Author: john_a_ward / photo on flickr

Author: john_a_ward / photo on flickr

Words follow you – especially words you have written and words written about you.

Legal cases are won or lost on words. In today’s world, emails and other writings are readily accessible to anyone who initiates a legal action.

This is especially true in Mine Safety and Health Administration (MSHA) matters.

Records are essential to all businesses. By law, mines maintain more records than other businesses, including mandated records of workplace examinations, mobile equipment examinations, air contaminants, noise exposure, chemical hazards, miner training, electrical ground checks, accident, injury and illnesses reports, and medical information.

In litigation, companies are prohibited from deleting emails and other records, regardless of how the company came into possession. That a document was provided in strict confidence does not protect it from subpoena. (This does not include attorney-client communications or attorney work product.) If a company does not comply with a document demand, a judge will order a response.

Emails are important in regulatory matters and lawsuits. In the MSHA world, emails are demanded in investigations of accidents, employee safety-related discrimination complaints, hazard complaints, unwarrantable failure charges, and investigations of manager and supervisor conduct.

If an operator does not produce a document legally mandated in MSHA regulations, citations will be issued. If not complied with, orders will be issued. Daily penalties of many thousands of dollars have also been ordered.

Emails and other documents maintained apart from MSHA requirements are another matter. MSHA seeks emails during investigations because they reflect individual thoughts and actions. Emails have a long life – even when deleted, because nothing is ever securely deleted.

The major problem with emails is people are casual and imprecise without realizing their words may become public and may implicate them in legal liability.

Many considerations affect how a company or individual responds to demands for emails, computer records, notes, plans, sketches, drawings, photographs and videos. Faced with a document demand, mine operators, contractors and individuals will want to know why the request is made and under what authority. Often, there are reasons to object.

Typically, maintenance documents are demanded because an inspector is suspicious and may believe the company misrepresented or neglected to respond to a serious condition. The inspector may have observed the condition personally; may have seen a reference to it in an examination record; or may have been informed by an employee or received an anonymous complaint.

As read by the inspector, the maintenance records may tell any number of stories: the condition was never reported; the condition was never addressed; the condition was not adequately addressed; and any of the above constituted serious negligence or unwarrantable failure to comply with a mandatory safety standard.

Supervisors and employees

Supervisors talk among themselves in group meetings and at shift turnover. They also meet with crews to discuss work requirements and safety. Different listeners hear different things. Anyone may make notes. Sometimes a record is official or simply in a supervisor notebook. Where there are multiple participants, there can be multiple interpretations.

Crew members may make their own notes. Sometimes, a crew member’s perception is mistaken, but it may appear valid in writing. Directions to resolve a condition may not have been properly understood. A crew member may believe production was emphasized over safety. In investigations, depositions and trials, written documents are compared to individual statements.

Companies often retain reports of unsafe conditions from verbal complaints, supervisor reports, official complaint logs or retained suggestion box submittals. (What companies do less well is make records of responses and corrections of conditions.) Whenever an inspector believes a safety condition was not addressed, the inspector will want to see documents. Records made during critical events carry strong weight and often outweigh later explanations.

No one wants to be exposed to possible misinterpretation of emails, notes, reports or documents they or someone else prepared not thinking about legal implications. When documents are demanded, the inspector or investigator may be questioned about the reasons and basis for the demand before responding. If there is disagreement with the inspector, the MSHA district office may be contacted.

Investigators must comply with agency policy, and agency policy may not support the demand. Sometimes, regardless of policy, a demand is not justified. Companies have gone to court to challenge policies they believed to be wrong. MSHA has prevailed in some cases, compromised or withdrawn in others, and sometimes has changed its policy.

Anything you write may become public. Words have consequences, phrasing has consequences. Protecting oneself against misinterpretation is important when deciding what to write, what not to write and in responding to demands for documents not expressly mandated by law.

Allison Barwacz

About the Author:

Allison Barwacz is the digital media manager for North Coast Media (NCM). She completed her undergraduate degree at Ohio University where she received a Bachelor of Science in magazine journalism from the E.W. Scripps School of Journalism. She works across a number of digital platforms, which include creating e-newsletters, writing articles and posting across social media sites. She also creates content for NCM's Portable Plants magazine, GPS World magazine and Geospatial Solutions. Her understanding of the ever-changing digital media world allows her to quickly grasp what a target audience desires and create content that is appealing and relevant for any client across any platform.

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