Catastrophic building failures: formulating initial strategy and organization: no one expects a building to collapse, but when that happens, counsel representing contractors or design professionals must have plans.

• Author: Fox, Reeder R.

A CATASTROPHIC building failure necessitates immediate action. For counsel representing contractors and design professionals, there are number of issues to be addressed promptly. Because these cases almost invariably lead to complex litigation, counsel's initial actions can have a significant bearing concerning the outcome of future litigation. This requires thinking as a consultant, organizer and advisor, as well as a litigator. Because catastrophic building failures always involve serious property loss and often personal injuries, the preservation and collection of evidence requires immediate action, including retention of experts and consultants.

NOTIFICATION ISSUES

The initial notification of a catastrophic building failure can come in many ways. The first call often comes from the client contractor, design professional or perhaps even the surety.

One of the first calls counsel should make is to the client's insurance carrier. Depending on the type of building failure, some insurers have emergency response teams that may come to the accident location. Some may have existing business relationships with consulting engineers and experts in various locations, where prompt notification can lead to the carrier's dispatch of one of its local or regional experts to begin an investigation. Insurance policies usually require prompt notification to the carrier, particularly in instances where the scene of the accident can change dramatically as rescue and remediation efforts are initiated by the appropriate authorities.

CRISIS MANAGEMENT TEAM

The creation of a crisis management team is critical. Counsel will need to be briefed by the client concerning the nature of the design, the status of construction and the actual conditions at the time of the collapse. It is important to develop an initial strategy on responses to questions and accounts from the media. Catastrophic building failures always generate significant media activity. When there are numerous personal injuries and fatalities, that attention intensifies. The crisis management team also must consider cooperation with the appropriate governmental authorities.

One of the most important functions of the crisis management team is to gather as much hard evidence as possible. When there are personal injuries, the scene of the collapse can be subject to many people altering and moving potential evidence in efforts to stabilize the physical site, provide medical assistance to injured people and recover bodies. Because the condition of the site is often quickly changing, efforts should be made to preserve as much evidence as possible through photographs and videotape. Some sites can be subject to cross-sectioning where material that is removed can be taken offsite and stored in an organized and orderly fashion.

WORK PRODUCT DOCTRINE AND ATTORNEY-CLIENT PRIVILEGE

Counsel must be involved in immediate consultation concerning the selection of experts, as this can be a significant issue regarding evidentiary issues that may arise in future litigation. To the extent that counsel is involved in the initial stages of investigation of a catastrophic building collapse and provides advice concerning the investigation and retention of experts, the client may be protected to various degrees by the attorney work product doctrine and the attorney-client privilege.

The roots of-the work product doctrine are in the realities of litigation in an adversary system, one of which is' "that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials and preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney." (1) However, documents that do not refer to work product prepared by an attorney or other agent of a party to aid in forthcoming litigation, and which are generated in the ordinary course of business, are discoverable. (2) The mere fact that the document was not prepared by an attorney or by an agent on behalf of the attorney is not itself fatal to a claim of protection. (3)

The purpose of the attorney-client privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice." "The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends on the lawyer's being fully informed by the client." (4) When an attorney is consulted for the purpose of obtaining professional advice or aid regarding the client's rights and liabilities, the communications are strictly confidential. (5)

A significant limitation on the application of the attorney-client privilege is that it protects only the disclosure of communications, not disclosure of the underlying facts by those who have communicated with the attorney:

[T]he protection Of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney. (6) A party cannot conceal a relevant fact from disclosure merely by revealing it to his attorney.

In National Engineering & Contracting Co. v. C&P Engineering & Manufacturing Co., (7) the Indiana Court of Appeals addressed discovery of photographs taken at a construction site. The Indiana Department of Transportation had contracted with National to widen a state highway. C&P's machine shop was located in a building adjacent to the highway. While National was performing trenching in front of the C&P building, National employees noticed new cracks in the walls and foundations of the building. The same day, National field personnel took 14 photographs of the building and the trench with a camera provided by National. According to the court, the photographs were taken on the "standing advice" of National's general counsel.

Five days later, 26 photographs of the inside of the building were taken, and two days later, 20 of the outside of the building. After the building had been repaired, a National superintendent took 11 photographs of concrete and steel supports that had been installed to strengthen the building.

During discovery, C&P requested all the photographs. Objecting, National asserted that the photographs contained the "mental impressions of National and are therefore entitled to absolute immunity under the attorney work product privilege." In the alternative, it argued that the photographs constituted attorney work product gathered in anticipation of litigation and were discoverable only on a showing by C&P that it had a...