The Casualty Occurred, Now What? Preserve the Evidence!( continued from page 19)
best practice to define the scope based on vessel operations, crew actions, and third-party interactions rather than issue generic holds that cover an infinite amount of data. It will be critical to clearly document the issuance of the hold and the scope of data to be preserved. Once litigation holds are established, a system should be established to monitor compliance, especially for vessels in transit or in foreign ports. Remote audits and onboard checklists can help to confirm preservation steps are followed.
Under U. S. law, failure to preserve relevant evidence can result in sanctions under Federal Rule of Civil Procedure 37( e).
When responding to a casualty, it is important at all times to be aware of privilege issues that may arise during. Generally speaking, privilege protections hinge on whether materials were prepared“ in anticipation of litigation.” In particular, courts will scrutinize:
1. Timing: was the report or interview conducted immediately post incident for operational reasons, or was it at counsel’ s direction?;
2. Purpose: was the document created for regulatory reporting( e. g., United States Coast Guard), or for legal strategy?; and
3. Conducting Party: interviews by attorneys or at the direction of attorneys are more likely to be protected.
Investigation teams also should be aware of the scope of the Attorney-Client Privilege, Work Product Doctrine, and Common Interest and Joint Defense Privilege:
• Attorney-Client Privilege protects from disclosure confidential communications between counsel and client made for the purpose of seeking or providing legal advice. A key factor to be aware of is that mixed-purpose documents( e. g., combining operational and legal analysis) risk potential waiver of the privilege. Further, it is important to be aware of distribution of materials sought to be covered by this privilege, as broad internal circulation can undermine confidentiality.
• Work Product Doctrine generally protects from disclosure materials prepared in anticipation of litigation, including:( 1) crew interview summaries;( 2) legal analysis;( 3) internal investigation reports;( 4) fact work product( e. g., raw crew statements); and( 5) opinion work product( e. g., attorney impressions).
• Common Interest and Joint Defense Privileges arises when multiple parties( e. g., shipowner, charterer, insurer) share legal interests. They may invoke either the Common Interest Privilege, which protects from disclosure communications related to a shared legal strategy, or utilize Joint Defense Agreements, which formalize privilege protections across parties.
To preserve privilege and confidentiality in post-incident communications, parties should utilize counsel to direct communications where appropriate. This includes having legal counsel— not operational staff— conduct crew interviews. In that regard, it is generally considered best practice in the United States for the crew not to draft written statements, which may be considered as recounting facts and thus would be discoverable. Such written statements are often incomplete and inaccurate as the crew may not be aware of what is important or relevant. Further, it is prudent to limit distribution and avoid broad internal circulation of sensitive communications. Vessel interests and counsel should also consider separating any legal analysis from operational updates in the same document or e-mail chain in order to best protect attorney-client privilege. Lastly, for ease of reference and to aid in discovery or participate in government investigations, it is important to maintain separate logs of any privileged materials and to update them regularly.
Disciplined evidence preservation is integral to success for a post-casualty investigation team. The steps discussed above provide a general framework of factors to consider, and will help position owners, manager, insurers, and counsel to respond to a casualty event effectively and efficiently.
p – 2026 BLANK ROME LLP
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