[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR750.2]

[Page 387-388]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 750_GENERAL CLAIMS REGULATIONS--Table of Contents
 
                 Subpart A_General Provisions for Claims
 
Sec. 750.2  Investigations: In general.

    (a) Conducting the investigation. The command where the incident 
giving rise to the claim is alleged to have happened is responsible for 
conducting an investigation in accordance with this part.
    (b) Thorough investigation. Every incident that may result in a 
claim against or in favor of the United States shall be promptly and 
thoroughly investigated under this part. Investigations convened for 
claims purposes are sufficiently complex that they should be performed 
with the assistance and under the supervision of a judge advocate or 
other attorney. Where the command has an attorney assigned, he shall be 
involved in every aspect of the proceedings. When an attorney is not 
assigned to the investigating command, consultation shall be sought from 
the appropriate Naval Legal Service Command activity.
    (c) Recovery barred. Even when recovery may be barred by statute or 
case law, all deaths, serious injuries, and substantial losses to 
property that are likely to give rise to claims must be investigated 
while the evidence is available. Claims against persons in the naval 
service arising from the performance of their official duties shall be 
investigated as though they were claims against the United States. When 
an incident involves an actual or potential claim against the United 
States for property damage only and the total amount likely to be paid 
does not exceed $5,000.00, an abbreviated investigative report may be 
submitted. Where this monetary figure may be exceeded, but the 
circumstances indicate an abbreviated report may be adequate to preserve 
the facts and protect the Government's claims interests, approval to 
submit a limited investigative report may be sought from the nearest 
Naval Legal Service Command activity.
    (d) Developing the facts. Any investigation convened for claims 
purposes must focus on developing the facts of the incident, i.e., the 
who, what, where, when, why, and how of the matter. Opinions on the 
possible liability of the United States under any of the claims statutes 
listed above shall not be expressed. Early and continuous consultation 
with claims attorneys at Naval Legal Service Command activities is 
essential to ensure the timely development of all necessary facts, the 
identification and preservation of relevant evidence, and to void the 
need for supplemental inquiries.
    (e) Attorney work product. (1) The convening order and the 
preliminary statement of an investigative report prepared to inquire 
into the facts of an incident giving or likely to give rise to a claim 
against the United States shall include the following:

    This investigation has been convened and conducted, and this report 
prepared, in contemplation of claims adjudication and litigation and for 
the express purpose of assisting attorneys representing the interests of 
the United States.

    (2) When an investigation is prepared by or at the direction of an 
attorney representing the Department of the Navy and is prepared in 
reasonable anticipation of litigation, it is exempt from mandatory 
disclosure under the Freedom of Information Act exemption (b)(5) and is 
normally privileged from discovery in litigation under the attorney work 
product privilege. 5 U.S.C. 552(b)(5). Unless an attorney prepares the 
report or personally directs its preparation, the investigation may not 
be privileged, even if it was prepared in reasonable anticipation of 
litigation.

[[Page 388]]

    (f) Advance copy. An advance copy of any investigation conducted 
because a claim has been, or is likely to be, submitted shall be 
forwarded to the Naval Legal Service Command activity claims office 
responsible for the area where the incident giving rise to the claim 
occurred.