Know How: Video


Mining or MSHA Litigation - Who Should Be Interviewed?



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I’m Jeff Phillips of Steptoe & Johnson and I work in our Lexington, KY office. Today we’re going to talk about obtaining statements and those are statements from witnesses particularly in the coal mining industry. First consideration, and we’ll talk about four considerations, first consideration should be does the circumstance warrant that a statement actually be obtained, and that’s something as a coal operator you need to weigh. Is there significant enough risk that a witness ought to be identified and interviewed because of potential MSHA implications or other implications?

The second thing that needs to be considered is all right, we’ve made the determination that witness interviews ought to be done; statements ought to be obtained – who is it that should be doing the interviews? Should the interviews and statement obtaining be done by someone who has a relationship with the particular individual being interviewed, should it be the immediate supervisor or foreman that works with the people being interviewed, or should it be someone that is designated from the safety department who may be more familiar with the process and what information is necessary and what is gonna be helpful as we work through this matter? Again, so that’s the second consideration that the company must take a look at.

The third thing to take a look at is who actually should be interviewed? The easy answer, all right, is the person that observed the condition or the witness to a particular event. And that’s not always sufficient. A lot of times there are individuals who have been through a particular area and observed the conditions and saw there was not a … there was not a problem there, those individuals may warrant being interviewed. How about individuals who were in the location after an event occurred? They may have heard statements from the MSHA inspector, they may have observed what the condition looked like after it happened or what it took to fix or resolve this situation. Also, an examination through the preshift and onshift books and other books, notebooks and electrical equipment examination books may also identify individuals who should be considered to be interviewed.

The last thing to consider and probably the most important once we’ve worked through those other three steps to determine if the statement should be taken, here’s the person who will be taking the statement, and here’s the pool of people that will be interviewed, is how do we memorialize it? How do we have this statement so that we can file it away and go back to it whenever we need it as we work our way through the case? Obviously, the first thing that can be done is simply an interview of the witness and then noting what that person said and be done with it. Obviously, allows a lot of wiggle room from the witness later if the witness says, “well that’s not what I said, it’s not memorialized correctly.” The second thing that may be considered is whether or not the witness actually should be handed a piece of paper and say “all right, why don’t you write down for us what actually happened.” The company loses control to some extent of the process when that happens because it’s not a whole lot of direction that’s given to the individual other than you know, tell us what happened. Who knows how long or how involved it’s gonna be that statement that’s given? Will it have relative information? Will it even be legible, because you can look at the statement sometime after and make heads or tails of what is said. So another thing to consider would be - should the person doing the interview actually have a discussion or dialogue with the witness first and mark down the information, write down the information that’s relevant to the case and then ask the individual to examine it, look at it and sign it if it’s accurate? Makes it much more controlled process for the company in taking down information that is relevant and has a bearing on the situation and could be helpful to the defense as we work through the case.

Another way to memorialize information is through recorded statements, either a court reporter being present or videotaping or even tape recording what a witness says. Again you lose a little bit of control when that happens because you just ask the question and who knows what the answer is gonna be, but you do have it memorialized in such a way that it will be difficult for the witness to change his or her testimony when it actually has been taken down in video or audio format.

So we would be happy to work through these issues with you and talk with you about any particular circumstance that is directly applicable to you or your company. These are the four main things you ought to consider when deciding when to take a statement and how to actually take a statement. If you have any questions, please feel free to give me a call, I’m happy to talk with you about it. Thanks.