After a marine casualty occurs, there will be many immediate actions for the relevant parties, including the vessel’s owner, manager, insurers, and counsel (“vessel interests”), to handle. Every incident has its own unique challenges, and this article will highlight some considerations regarding the preservation of evidence. Preservation of evidence is a critical step in the face of government investigations and in anticipation of litigation.

As a starting point, vessel interests will need to assemble an internal investigation team to assist with the initial response and investigation. This will include technical experts, consulting experts, and counsel who can assist with making sense of things in the immediate aftermath and in providing guidance and legal advice to the vessel’s crew.

When the internal investigation team arrives, a natural starting point will be the vessel’s pilothouse to identify the equipment on board and locate logs and key documents. Depending on the type of casualty and the crew’s response, it will be important to try to keep as much of the equipment as possible as it was when the incident occurred. It also will be important to document everything via photos, videos, and photocopies or scans. In practice, the best way to do this is usually to connect with one of the bridge watchstanders. While it may be casualty specific, it is always best to start with a list of likely relevant materials, and then coordinate making copies or photographs. To develop the list of documents to copy, it will be important to work with any retained technical or consulting expert(s). 

One of the highest priorities will be to obtain a copy of the data files from the Voyage Data Recorder (“VDR”). With today’s advanced systems, doing so will often require a navigation equipment technician who can download the data. It is also important to ensure that, in addition to the data, the investigation team gets a copy of the software to view the data as well as any relevant user or operating manuals. The team must also determine the different data inputs that go into the VDR, the location of the microphones that record bridge audio, and whether or not there is any data missing. 

Collection from the engine room is also important. While every ship is different, like on the bridge, the first step will be to map out the equipment and components and determine which companies or technicians will be needed to collect data. It also will be important to identify which logs are electronic versus in paper / hard copy, and to connect with the ship’s crew to establish how such logs were kept in the normal course of operations. The investigation team should also identify how the vessel’s planned maintenance system works, how the ship’s drawings and diagrams are stored, and whether or not the crew compiles work done reports.

If the logistics of the casualty investigation permit, the investigative team would ideally bring in professional scanning equipment for any paper logs. However, no matter the method of collection, it will be important to index the documents collected on a daily basis at the end of each day’s investigation, ideally organized by issue category, so they are easy to locate in the future. 

Another outside vendor may be required to conduct any necessary forensic imaging. First, establish the number of computers on board and whether there are separate servers or external hard drives that need to be imaged. It is important to identify which e-mail accounts have external sending capability, versus which are limited to internal correspondence. To the extent practical, guidance from a crew member regarding the internal computer folder structures will be a great help down the road.

Another key step in the process will be issuing litigation holds. Litigation holds are triggered when litigation becomes reasonably foreseeable. Under U.S. law, failure to preserve relevant evidence can result in sanctions under Federal Rule of Civil Procedure 37(e). The first step of a litigation hold is to identify custodians, which include the vessel’s master, Designated Person Ashore (“DPA”), and other relevant shoreside personnel. Next, the preservation scope will need to be decided. This will include documents such as logs, equipment data, e-mails, and other messages. Generally, it is considered best practice to define the scope based on vessel operations, crew actions, and third-party interactions rather than issue generic holds that cover an infinite amount of data. It will be critical to clearly document the issuance of the hold and the scope of data to be preserved. Once litigation holds are established, a system should be established to monitor compliance, especially for vessels in transit or in foreign ports. Remote audits and onboard checklists can help to confirm preservation steps are followed. 

When responding to a casualty, it is important at all times to be aware of privilege issues that may arise during. Generally speaking, privilege protections hinge on whether materials were prepared “in anticipation of litigation.” In particular, courts will scrutinize:

(1) Timing: was the report or interview conducted immediately post incident for operational reasons, or was it at counsel’s direction?; 

(2) Purpose: was the document created for regulatory reporting (e.g., United States Coast Guard), or for legal strategy?; and

(3) Conducting Party: interviews by attorneys or at the direction of attorneys are more likely to be protected. 

Investigation teams also should be aware of the scope of the Attorney-Client Privilege, Work Product Doctrine, and Common Interest and Joint Defense Privilege:

• Attorney-Client Privilege protects from disclosure confidential communications between counsel and client made for the purpose of seeking or providing legal advice. A key factor to be aware of is that mixed-purpose documents (e.g., combining operational and legal analysis) risk potential waiver of the privilege. Further, it is important to be aware of distribution of materials sought to be covered by this privilege, as broad internal circulation can undermine confidentiality. 
   
• Work Product Doctrine generally protects from disclosure materials prepared in anticipation of litigation, including: (1) crew interview summaries; (2) legal analysis; (3) internal investigation reports; (4) fact work product (e.g., raw crew statements); and (5) opinion work product (e.g., attorney impressions).
   
• Common Interest and Joint Defense Privileges arises when multiple parties (e.g., shipowner, charterer, insurer) share legal interests. They may invoke either the Common Interest Privilege, which protects from disclosure communications related to a shared legal strategy, or utilize Joint Defense Agreements, which formalize privilege protections across parties. 

To preserve privilege and confidentiality in post-incident communications, parties should utilize counsel to direct communications where appropriate. This includes having legal counsel—not operational staff—conduct crew interviews. In that regard, it is generally considered best practice in the United States for the crew not to draft written statements, which may be considered as recounting facts and thus would be discoverable. Such written statements are often incomplete and inaccurate as the crew may not be aware of what is important or relevant. Further, it is prudent to limit distribution and avoid broad internal circulation of sensitive communications. Vessel interests and counsel should also consider separating any legal analysis from operational updates in the same document or e-mail chain in order to best protect attorney-client privilege. Lastly, for ease of reference and to aid in discovery or participate in government investigations, it is important to maintain separate logs of any privileged materials and to update them regularly. 

Disciplined evidence preservation is integral to success for a post-casualty investigation team. The steps discussed above provide a general framework of factors to consider, and will help position owners, manager, insurers, and counsel to respond to a casualty event effectively and efficiently.