Handling Outbreak Investigations With Outside Counsel

By Joshua Swiger

An outbreak can be a terrifying event. A public announcement linking an outbreak to a particular company often ignites a fury of news media, investigation efforts by public agencies (which generally started long before the announcement), and the need to interface appropriately with the public at large. It also is a defining moment: although a company may have a spotless record, the public suddenly starts to associate the company with the news articles printed on the recent outbreak. Having been placed (rightly or wrongly) in the public’s crosshairs, the company’s efforts to address the situation are critical, emphasizing the need to properly plan and prepare for potential outbreaks.

These concerns often are amplified by the investigative efforts of public health officials. Investigations can be intrusive and span several months, making it important to coordinate how information is being received from and relayed to public officials. The recent Cyclospora outbreak linked to salad mix imported from Mexico is a fitting example, as the epidemiological curve encompassed over two months, with 636 reported cases from 23 states.1 Given its magnitude and duration, effective case management undoubtedly required detailed coordination for an extended period of time.

The initial events following a presumptive-positive test result, a recall, and particularly an announcement by a public agency have long-term impacts, both for future business and potential litigation. Companies want to maintain confidence in their consumers, employees, and regulators, while taking steps to minimize what, at times, can amount to years of litigation and enormous expense. Of course, a crucial aspect of achieving these results starts with implementing proper food safety policies and procedures and establishing an internal company protocol for handling potential outbreak situations. One aspect of this process that often is overlooked, however, is the help that outside counsel can provide in the early phases of an actual or potential outbreak.

Typically one of the first persons notified of a potential outbreak is the company’s in-house counsel, and, as a trusted source of information who has daily experience with the internal affairs of the company, in-house counsel appears to be a fitting choice to help direct the investigation and handle communications with the media and regulators. However, in-house counsel often wears two or more “hats,” serving as both an attorney and a business executive with various non-legal duties. In this dual role, communications with and documents generated by in-house counsel can, in certain circumstances, lose protections afforded by two important doctrines in litigation: the attorney-client privilege and work product doctrine.

Generally defined, the attorney-client privilege protects from disclosure confidential communications between an attorney and his/her client to obtain legal services or advice. The protections of this privilege may be waived, for example, with respect to in-house counsel communications made in a non-legal capacity, or for a mixed legal and non-legal purpose. As to the work product doctrine, it typically extends to certain materials generated in anticipation of litigation. Thus, retaining outside counsel helps establish that materials generated by that firm during the initial investigation period were, in fact, made in anticipation of litigation.

Finally, both of these protections can be waived if the information is disclosed to certain third parties, and outside counsel can work in conjunction with in-house counsel and corporate representatives to ensure that the proper information is being disseminated publicly.

In short, there are a variety of reasons to obtain outside counsel early on when facing a potential outbreak, or, in the ideal situation, maintain an ongoing relationship with outside counsel to review food safety protocols and be “on call” when an issue arises. This is particularly true when outside counsel is well-versed in food safety, as the client not only increases the likelihood that sensitive information will remain confidential, but also obtains the benefit of having an experienced firm assist with handling regulators, product testing, and inquiries from the public at large with a looming outbreak. These steps can prove invaluable if the situation escalates into large-scale litigation, in which almost every aspect of a corporation is closely scrutinized—particularly how it handled the initial outbreak investigation.

1 For the most recent CDC update on the Cyclospora outbreak, see CDC, Investigation of an Outbreak of Cyclosporiasis in the United States

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Categories: Litigation