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Documenting Disaster Response: Why the Record is Important
Friday, May 17, 2013 6:30 AM

In the wake of the deadly tornadoes that struck North Texas Wednesday night, many found their lives flipped upside down in a manner of minutes. When faced with disaster, When faced with disaster, how you handle the situation from the get go can determine whether or not you and your organization have an easy road ahead. David M. Samuels, senior litigation partner at Michelman & Robinson, LLP and Bob Mellinger, CEO of Attainium Corp, share why it is critical to accurately record everything that occurred during a disruption.

It has been said that, when disaster strikes, everyone’s IQ goes to zero. People are in high-alert mode and are responding in ways for which they’ve been trained, acting and making decisions on only partial information. A disaster or disruption is often a traumatic event, and memory is impaired under such conditions. The record is what helps everyone remember what occurred.

It is also important to have a record in anticipation of potential liability. If the record is prepared in such a way that it can be turned over to your insurance carrier or defense lawyer, it can become a significant tool in litigation and depositions. In most states, the statute of limitations for such litigation is one to three years, and depositions could take another 12 months or so. You could be asked to recall very specific actions and decisions from two to four years ago, which is a difficult thing to do.

In many cases, this record will be confidential, although rules of confidentiality differ from state to state. In order to maintain any confidentiality, however, you must maintain privilege – keep the report confidential so that it is seen only by those in charge or those who absolutely need to see it. Persons who do NOT need to see the report will include guests or customers and legal representatives (or their private investigators) of any potential claimant, who will usually contact the management directly before filing suit and request all relevant documents and reports. If you use privilege as a shield (to protect the record), you will not be able to use the report as a document (evidence) in court unless there is a decision made to waive the privilege. Your attorney, however, will be able to use it to sit down with key players and help refresh their memories of the event.

Stay tuned for Part 2 of “Documenting Disaster Response” in Monday’s issue of the Lonestar Leaguer.