8 Onstream • • • • • • in privilege, making the communications between the insured, counsel, and experts essentially nondiscoverable in future litigation Use recognized experts to communicate with governmental authorities (PHMSA, ATF, CSB, OSHA, OH&S, etc.); recognized experts are often treated deferentially at loss scenes and can sometimes get more information from the authorities or influence other investigators as a result Jointly develop scene and artifact inspection protocols with experts and adverse parties; inspections and tests that take place in conformity with a jointly-agreed protocol often eliminate a spoliation defence Isolate the area truly relevant to a cause investigation, thereby streamlining the clean-up process and mitigating the business interruption impact; an experienced and specialized expert does not need to preserve everything and can reduce the area and artifacts to be preserved to a very limited location; Ensure NFPA 921 and other similar forensic inspection schemes are followed; a failure to follow the jurisdiction’s rules about forensic activity virtually guarantees a spoliation challenge which will raise doubts about an otherwise solid case, perhaps jeopardizing any recovery Work closely with the insured and risk management personnel to recover the insured’s deductible or noncovered portion of the claim and to assist with the insured’s likely statutory obligation to provide a root cause report; recognized and specialist experts often know much more about an issue than any insured employee and so can be of significant assistance in the analysis required for formal reporting, not to mention steering the direction of the report’s conclusions Establish attorney-client and work-product privileges early on so as to protect certain materials from unwanted production if litigation begins. findings, but also to shape the legal and associated factual development of the recovery effort so that the more advanced and complex theories are fully vetted. These include: • Overcome or mitigate insured made-whole common law rules • Gather all facts and contracts relative to the economic loss doctrine • Determine if governmental agencies may bear responsibility for the loss under various governmental immunity statutes • Ensure any formal notice and a subsequent suit are brought within the shortened period for claims against most governmental bodies (some only a few months after the loss) • Establish the facts critical to defeating adverse liability coverage defences, such as professional services and the ‘your work’ doctrine exclusions. All of this must be kept in mind when the loss is being investigated so a subrogation case is not defeated before it even starts. Counsel will be aware of any special notice requirements or limitations periods and can make certain that all conditions precedent to a subrogation action are fulfilled. Best practices programs have created significant return on investment; or, Success stories In a best practices program that requires properly conducted subrogation investigations and cost-effective recovery litigation, we have experienced numerous success stories: • Prompt attorney response and attendance at the loss scene investigation only 16 hours after the loss resulted in the preservation of the critical evidence that otherwise would have been missed; a creative theory of recovery; and, leading to a multi-million dollar jury verdict Early involvement of counsel and the correct experts will permit the investigation to not only follow the forensic © 2013 Xchanging