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Sep 12, 2023 111 likes •910 views

Presenting a live 90-minute webinar with interactive Q&A In-House Counsel Communications with Employees During Litigation Process: Protecting Attorney-Client Privilege and Work Product Strategies for Interviewing Employees and Obtaining

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Presenting a live 90-minute webinar with interactive Q&A

In-House Counsel Communications with Employees During Litigation Process: Protecting Attorney-Client Privilege and Work Product

Strategies for Interviewing Employees and Obtaining Statements Regarding Threatened or Pending Litigation

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, OCTOBER 27, 2016

Stavroula E. Lambrakopoulos, Partner, K&L Gates, Washington, D.C. Todd Presnell, Partner, Bradley Arant Boult Cummings, Nashville, Tenn.

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Strafford Publications CLE Webinar

October 27, 2016

In-House Counsel Communications with Employees During Litigation Process: Protecting Attorney-Client Privilege and Work Product

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YOU’VE GOT……A COMPLAINT! NOW WHAT?????

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COUNSEL’S COMMUNICATIONS WITH EMPLOYEES DURING LITIGATION ARE MULTI PURPOSE

  • To Notify Appropriate Employees and Senior Management About Litigation
  • To Identify universe of documents and employees to be covered by litigation holds
  • Provide notices internally and be prepared to explain and guide
  • To Secure, Preserve and Collect data and physical evidence
  • To Conduct Internal Investigation
  • To Gain Knowledge of the Facts
  • To Investigate Whistleblower or Employee Hotline complaints
  • To Preserve Witness Accuracy and Recollections through Timely Investigation

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COUNSEL’S COMMUNICATIONS WITH EMPLOYEES DURING LITIGATION ARE MULTI PURPOSE

  • To Assess Company’s Potential Liability and Exposure
  • To Manage Message Internally
  • To Provide Legal Advice and Recommend Plan of Action
  • To Keep Senior Management Informed
  • To Assess and Determine Public Disclosures to Government, Shareholders,

Consumers, Media

  • To Assist in Identifying Need for Remedial Steps
  • To Comply With Laws and/or Regulations
  • To Provide Information in Connection with Claim for Insurance Coverage

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A DETERMINING FACTOR IN WHETHER PRIVILEGE APPLIES: WHICH HAT ARE YOU WEARING?

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A DETERMINING FACTOR IN WHETHER PRIVILEGE APPLIES: WHICH HAT ARE YOU WEARING?

  • As legal officer providing legal advice to the company
  • As a manager of a business unit
  • As a Chief Compliance Officer
  • As Secretary to the Company’s Board of Trustees
  • ALL OF THE ABOVE ?????????

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SHIELDING COMMUNICATIONS BY ATTORNEY-CLIENT PRIVILEGE AND/OR ATTORNEY WORK PRODUCT DOCTRINE

  • To Promote “Full and Frank Communications” Between Attorneys and their Clients
  • Failure to maintain privilege may leave company’s most sensitive information

exposed to regulators, litigation opponents and competitors

  • Important to preserve the company’s maximum options including waiving privileges in
  • rder to obtain leverage for the company
  • Privilege is a double-edged sword fostering candor and protecting documents but

preventing their use later on.

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SHIELDING COMMUNICATIONS BY ATTORNEY-CLIENT PRIVILEGE AND/OR ATTORNEY WORK PRODUCT DOCTRINE

Think Ahead:

  • Is privilege over counsel’s communications or investigation necessary?
  • Will privilege limit the defense later, such as establishing affirmative defenses?
  • Will the company benefit by disclosure to government agencies?
  • Is disclosure required by law, regulation or contract?
  • When Waiver is at play, what is its scope?

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DISCOVERY OR INFORMATION REGARDING EMPLOYEE INTERVIEWS AND EMPLOYEE STATEMENTS BY ADVERSE PARTIES

  • Attorney-client privilege
  • Corporate attorney-client privilege
  • In-house counsel
  • Practice tips

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Written Oral Communication

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Confidential

Confidential when made Intent to Remain Confidential

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Legal Purpose

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Corporate Attorney-Client Privilege

Employee—Outside Counsel Employee—In-House Counsel

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Corporate Attorney-Client Privilege

Employee—Employee In-House Counsel—Outside Counsel

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Control Group Test Subject Matter Test Corporations?

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Control Group Test

Corporate employee who communicates with corporate attorney— is in a position to take a substantial part in decision that corporation will make upon advice of counsel.

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SUBJECT MATTER TEST

  • Communication made for purpose of rendering legal advice
  • Made at direction of supervisor
  • Request made to secure legal advice
  • Subject matter of communication within scope of employee’s duties
  • Communication kept confidential

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Control Group Subject Matter

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What about consultants?

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MICHIGAN MICHIGAN

Subject Matter Control Group Undecided

W W W W W W W W W

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In In-Hous

  • use

e counse unsel l ar are la lawyer ers, , too

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In-House Counsel

A corporation can protect material as privileged only upon a clear showing that in- house counsel acted in a professional legal capacity.

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In-House Counsel

Legal Hat

  • r

Business Hat

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Dual-Purpose Communications

Because

  • f

Primary Purpose

TWO STANDARDS

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What do the judges say?

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Copying In-House Lawyer

Merely copying or “cc-ing” legal counsel, in and of itself, is not enough to trigger the attorney–client privilege.

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Email Attachments

Although the email to which the memorandum is attached is marked “private” the memorandum itself contains no similar designation.

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“Privilege” Designations

While it is true that a mere stamp is insufficient to cloak an otherwise unprivileged document, court will not overlook absence of such a designation.

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“Privilege” Designations

Most law firms and corporate legal departments include this warning on all of their emails as a matter of course. That does not mean, however, that all of the information contained in those emails is confidential, or has continued to remain confidential.

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KEPT CONFIDENTIAL?

Although the Defendant claims that these documents were treated as confidential and kept in locked cabinets, none of these documents is marked “confidential” or “privileged.” The documents were not segregated, but were intermingled with all other personnel documents.

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KEPT CONFIDENTIAL?

Just because a document is designated “CONFIDENTIAL-ATTORNEY/CLIENT PRIVILEGED” does not mean that the Court can assume that the information was continually maintained as such.

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LEGAL PURPOSE

In a situation where the author or recipient of allegedly privileged documents functions as a corporate manager as well as an attorney, efforts must include clear designation of those communications sent or received in his capacity as a legal advisor.

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ATTORNEY-CLIENT PRIVILEGE

  • US law applies protection of attorney-client privilege to employee communications

with counsel if:

  • Communication is between a lawyer and the client for the purpose of securing legal advice;
  • Employee making the communication did so at the direction of his/her corporate superior;
  • The superior made the request so that the corporation could secure legal advice;
  • The subject matter of the communication is within the scope of the employee’s corporate

duties;

  • The communication is made to the lawyer in confidence outside the presence of strangers.
  • The communication is not disseminated beyond those persons internally who, due to

corporate structure, need to know the contents; and,

  • The client has invoked and not waived the privilege.

PRIVILEGE = PROTECTION (But see Crime/Fraud and other Exceptions)

  • Who “Owns” the Privilege? Who is the Client?

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ATTORNEY-CLIENT PRIVILEGE

Practical tips:

  • Attorney-Client Privilege is Based on the Attorney-Client Relationship
  • Subsequent Disclosure Affected by Waiver
  • Privilege does not Shield Facts
  • Engagement letter with outside counsel conducting the investigation or handling

the litigation should document the scope

  • Management/board should direct employees to cooperate with counsel
  • Communication Should Be Protected
  • Clearly Marked as PRIVILEGED & CONFIDENTIAL
  • FORWARDING should be strictly prohibited or restricted (mark DO NOT

FORWARD)

  • Documents Containing Privileged Communication Should be Safe-Guarded
  • Limit distribution list on a “need to know” basis

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ATTORNEY-CLIENT PRIVILEGE

  • Not all jurisdictions will recognize attorney-client or work product privilege or apply it

to internal investigations

  • U.S. and UK recognize the attorney-client and work product privileges if investigation

is conducted by in-house or outside counsel in anticipation of litigation or regulatory investigations

  • EU directive applies privilege for communications of outside counsel but not in-house
  • counsel. Note country-by-country variations
  • Japan recognizes confidentiality but not privilege. Written report provided to Board

during a regular Board meeting would be available to company’s shareholders Practical tip: Counsel should familiarize oneself with laws of applicable jurisdictions in the

beginning of the investigation or litigation

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WORK-PRODUCT DOCTRINE

Not an evidentiary privilege

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WORK-PRODUCT DOCTRINE

Burden Shifting

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Requesting Party

Relevant Not

  • therwise

privileged Documents

  • r materials

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Opposing Party

Anticipation

  • f

litigation By party or party’s lawyer No Waiver

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FACT WORK PRODUCT V. OPINION WORK PRODUCT

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Requesting Party

Substantial Need Unable to

  • btain w/o

undue hardship

Fact Work Product

Articula culate te with spec ecificit ficity

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Requesting Party

Substantial Need Unable to

  • btain w/o

undue hardship

Opinion Work Product

But …

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OPINION WORK PRODUCT

  • 1. Deserves special protection
  • 2. Far stronger showing of necessity and unavailability
  • 3. Only in rare, extraordinary circumstances
  • 4. Nearly absolute immunity from discovery
  • 5. Attorney’s work product at issue

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WORK PRODUCT PRACTICE TIPS

  • 1. Mark documents as work product
  • 2. State that it is OPINION work product
  • 3. Confidential
  • 4. Instructions to not disseminate

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FRCP 26(B)(3)(C)

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WORK PRODUCT?

  • Manitowac Co. v. Kachner, 2016 WL 2644857 (N.D. Ill. May 10, 2016)
  • Coito v. Superior Court, 278 P.3d 860 (Cal. 2012).

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ATTORNEY WORK PRODUCT DOCTRINE

See Upjohn Co. v. United States, 449 U.S. 383 (1981)

  • Protects Documents Created or Collected for the Purpose of Assisting with Litigation
  • Documents incorporating or reflecting the opinion of attorneys, including witness

interview memos, white papers, investigation reports

  • Analyses created for litigation or in anticipation of it
  • Historical facts or chronologies prepared by or at the direction of counsel
  • Expert analyses prepared by expert retained by counsel
  • Privilege is based on the purpose of the document’s creation: Motivated by ongoing
  • r anticipated litigation.
  • Disclosure can be ordered if the adverse party cannot obtain a substantial equivalent

to the underlying facts or documents without “undue hardship”

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ATTORNEY WORK PRODUCT DOCTRINE

  • Privilege will apply to experts retained by counsel if properly established
  • Attorney work product privilege will apply to counsels’ memoranda of witness

interviews containing counsels’ mental impressions

  • May not apply to shield transcripts, verbatim notes, or recordings of witness

statements, or a recitations of facts

  • Work Product privilege is not absolute and discovery may be available under

narrow circumstances Practical tip: Incorporating legal analysis and counsels’ mental impressions to the memo while restricting dissemination of the memo are key to triggering protections of the attorney work product privilege

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CONSIDERATIONS WHEN DECIDING WHETHER TO TAKE STATEMENTS FROM EMPLOYEES

  • Discoverability
  • Ethical considerations
  • Upjohn warnings
  • Privilege
  • Privilege Waiver
  • Work-Product Protection
  • Video or verbatim transcript

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INTERVIEWING EMPLOYEE WITNESSES

  • Do they need separate counsel? Can you even approach them?
  • Cooperation provisions in employment agreements
  • Model Rules of Professional Responsibility
  • Client-Lawyer Relationship
  • Rule 1.13 Organization As Client
  • Rule 1.6 Confidentiality of Information
  • Transactions with Persons Other than Clients
  • Rule 4.3 Dealing with Unrepresented Person
  • Rule 4.4 Respect for Rights of Third Persons

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 1.13 Organization As Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the

  • rganization, or a violation of law that reasonably might be imputed to the organization,

and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 1.13 Organization As Client (cont’d) (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the

  • rganization.

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the

  • rganization against a claim arising out of an alleged violation of law.

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 1.13 Organization As Client (cont’d) (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 1.6 Confidentiality of Information (cont’d) (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 4.3 Dealing with Unrepresented Person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

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MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 4.4 Respect for Rights of Third Persons (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods

  • f obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

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INTERVIEWING EMPLOYEE WITNESSES

  • Assess whether employees should be represented by their individual counsel for your

interview

  • If criminal matter is pending, consider whether laws of the jurisdiction prevent or limit

counsel’s ability to conduct interview

  • When is “shadow” counsel appropriate and how does that work?
  • Who pays for their lawyers?
  • Indemnification obligations
  • Advances & Undertakings
  • Insurance claims and coverage
  • Joint Defense Agreements – when should you have one and how do they work? Oral
  • r written?
  • The delicate balance of collaboration vs. collusion

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APPROACHING EMPLOYEE WITNESSES FOR INTERVIEWS AND INFORMATION

  • Importance of the Upjohn Warnings:
  • Notify witnesses that:

1. counsel is retained by the company or its Audit Committee/Board; 2. communications are confidential subject to privilege; 3. company, who owns the privilege, may choose to waive the privilege and disclose information provided by the witness; and, 4. counsel does not represent the witness.

  • Memorialize in writing that you have provided the Upjohn warning and that it was

understood

  • Consequences of Failure to Provide Upjohn Warnings

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APPROACHING EMPLOYEE WITNESSES FOR INTERVIEWS AND INFORMATION

  • Labor laws in various countries may limit counsel’s ability to approach and interview

employees outside of the presence of their counsel or a union representative

  • Other laws may limit the availability, use and/or subsequent disclosure of witness

statements provided to counsel in an internal investigation to governmental authorities

  • Cultural and language barriers and local customs may affect how witnesses will

respond to the investigation. Do you need translators and/or local counsel within each jurisdiction? Practical tip: Engage counsel or interpreters who can communicate to employees in their native languages

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OBTAINING STATEMENTS FROM EMPLOYEE WITNESSES

Think Ahead

  • What will the statement be used for?
  • Who should conduct the interview? HR, legal, both together?
  • Should outside counsel be involved and/or present?
  • Do you need statement for personnel file or regulatory filing (i.e. Form U-5)?
  • Are you seeking an affidavit to append to a court pleading?
  • Is there a possibility of disclosure to adverse parties in litigation, to government

investigations or publicly? What are the pros and cons of such disclosures?

  • Can the statements come back to haunt the organization?
  • Do you want the statements in writing, signed or attested to by employee?
  • Is the employee represented by personal counsel?
  • Would counsel’s privilege-protected confidential notes of the employee interview be

sufficient?

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OBTAINING STATEMENTS FROM EMPLOYEE WITNESSES

Practical Tips

  • When in doubt, err on the side of confidentiality to preserve company’s maximum
  • ptions and leverage!
  • Conduct interviews first to determine what witness might say before deciding whether

statement is committed to writing!

  • Include counsel in HR interviews and make sure that any notes and memos meet the

elements for privilege protection including: prepared by or at the direction of counsel; incorporating counsel’s mental impressions; prepared in anticipation of potential litigation; clearly marked as confidential and privileged. THINK BEFORE SHARING!

  • Where documents are being prepared for inclusion in personnel file or to be disclosed

to parties outside the privilege zone, protect drafts prepared by counsel or containing counsel’s advice or comments.

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MAINTAINING PRIVILEGE PROTECTIONS WHEN COMMUNICATING WITH EMPLOYEES REGARDING MEDIA ISSUES

Alomari v. Ohio Dep’t of Public Safety, 626 Fed. App’x 558 (2015).

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MAINTAINING PRIVILEGE PROTECTIONS WHEN COMMUNICATING WITH EMPLOYEES REGARDING MEDIA ISSUES

Bloomingburg Jewish

  • Educ. Ctr. v. Village of

Bloomingburg, 2016 WL 1069956 (SDNY Mar. 18, 2016).

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PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING WITH REGULATORS IN GOVERNMENT INVESTIGATIONS

  • “Credit for Cooperation” a pervasive theme in Government Investigations
  • Expectations may vary depending on the regulator(s) and the company’s potential

exposure to government enforcement action

  • Enormous pressure from regulators to cooperate with their investigation
  • Area is fraught with risks and potential pitfalls but advance thought vital
  • Consider whether civil or criminal matter (or potential for criminal) and whether Fifth

Amendment may be invoked

  • Evolution of what “Credit for Cooperation involves but still subject to agency

determination COOPERATION MAY MEAN WAIVER OR SOMETHING CLOSE TO IT

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PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING WITH REGULATORS IN GOVERNMENT INVESTIGATIONS

  • Agencies may differ in their approaches
  • U.S. Securities and Exchange Commission (“SEC”) Enforcement

Cooperation Initiative

  • 2001 Seaboard Factors : self-policing and appropriate compliance

procedures and “tone at the top”; effective self-disclosure of misconduct including a thorough version of the nature, extent and origins of the misconduct; remediation; and cooperation (i.e. providing SEC staff with all information relevant to underlying violations.

  • Deferred Prosecution and Non-Prosecution Agreements
  • Whistleblower bounties

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THE YATES MEMO — HOW HAS IT REDEFINED COOPERATION AND DEALING WITH INDIVIDUAL OFFICERS AND DIRECTORS?

  • U.S. Department of Justice Cooperation Initiatives
  • Yates Memo
  • DOJ’s expectation that company will conduct timely, appropriate,

thorough and independent investigation

  • To receive any cooperation credit , company must disclose all non-

privileged information about individual wrongdoing to DOJ

  • Partial Credit not available to those withholding information about

individual misconduct

  • Credit hinges on whether company has self-disclosed the violation and

helped the government identify and hold accountable individual wrongdoers at the company

  • FCPA Pilot Cooperation Initiative
  • Yates Memo in Action

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FEDERAL & STATE BANKING REGULATORS

Bank Examiner Privilege

  • Protects information and communications between financial institutions (their

employees & agents) and certain banking regulators including the OCC, the Board of Governors of the Federal Reserve System, FDIC, Consumer Financial Protection Board (“CFPB”), and various state banking agencies

  • Covers confidential supervisory information including regulator communications

regarding examinations, examination reports and related documents and information

  • Privilege belongs to the institution but government regulator must have
  • pportunity to defend the assertion of the privilege
  • Unclear whether this privilege would be upheld in an enforcement action by that
  • r another agency (i.e. CFPB)

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PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING WITH REGULATORS IN GOVERNMENT INVESTIGATIONS

  • Issues to Consider in Government Investigations When Seeking Cooperation Credit
  • Balancing company interests with interests of individual employees, officers and directors,

and members of the board

  • When are government expectations for “cooperation” at odds with ethical obligations —

Tensions between company interests and serving up individuals

  • What is the role of the General Counsel and other senior counsel as “gatekeepers”
  • Potential individual liabilities to navigate
  • When is it time to recommend separate counsel to the individual employees or officers being

interviewed by in-house and/or outside counsel

  • How do you memorialize the results of the investigation including the employee interviews?

Do you prepare an oral or a written report?

  • What do you ultimately share with the regulators? (i.e. the report, the notes, facts,

chronologies, documents)

  • Are you anticipating private litigation arising out of government investigation —shareholder

suits, derivative suits, employment litigation

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PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING WITH REGULATORS IN GOVERNMENT INVESTIGATIONS

  • Your shield cannot be your sword
  • Full Waiver and “Selective” Waiver — the lessons of Diversified Industries v. Meredith, 572 F.2d

596 (8th Cir. 1978) & In re Steinhardt Partners, 9 F.3d 230, 236 (2d Cir. 1996)

  • Most jurisdictions do not recognize “selective” waiver for voluntary disclosures in government

investigations

  • See In re Pacific Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) (the doctrine has been

“rejected by every other circuit to consider the issue” since Diversified Industries)

  • Confidentiality Agreements with Government may protect privilege in limited instances
  • See In re Natural Gas Commodity Litig., 2005 WL 1457666 at *8 (S.D.N.Y. June 21,

2005)

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PRACTICAL TIPS IN DEALING WITH GOVERNMENT INVESTIGATIONS

  • Involve outside counsel in complex, sensitive investigations particularly when independence will be

considered a factor in assessing investigation’s credibility

  • Preserve privileges at the outset until fact gathering is complete so as to maximize options in

dealing with government

  • Separate business advice from legal advice
  • Consider whether “credit” for cooperation can be quantified and weigh that against the risks to your

company

  • Remember that facts and non-privileged documents do not become privileged by being circulated

to counsel

  • Cooperation can be thorough and acceptable to regulators even without a privilege waiver
  • DON’T share privileged documents including interview notes and investigative reports.

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SLIDE 77

PRACTICAL TIPS IN DEALING WITH GOVERNMENT INVESTIGATIONS

  • Consider whether a written report of the investigation’s findings and conclusions is

required and if not, keep any report oral

  • DO provide oral presentation to regulators with reference to facts and conclusions,

compilations of key non-privileged documents, explanations of personnel actions and remedial steps

  • Stay fluid as internal investigation and regulatory actions evolve
  • Consider nature of related litigation and whether waiver in the government action will

substantially harm litigation interests

  • Balance those interests with company’s interests with respect to the government

investigation

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SLIDE 78

Faculty Biographies

Stavroula E. Lambrakopoulos is a partner at K&L Gates who concentrates her practice in securities enforcement matters, securities and financial services litigation, internal investigations and broker-dealer regulation. She regularly represents corporate and individual clients in enforcement proceedings before the SEC, the Department of Justice, FINRA, and state securities regulators. She represents financial institutions, corporations, and their officers in complex financial services cases and securities class action litigation. Todd Presnell, a Partner at Bradley Arant Boult Cummings, is a trial lawyer licensed in Georgia and Tennessee who represents major corporations, small businesses, governmental entities, tax- exempt organizations, and individuals in their litigation-related needs. He is a recognized expert in the area

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evidentiary privileges, including serving as editor-in-chief of Evidentiary Privileges for Corporate Counsel (DRI 2008), and provides audit-related and training services to in-house legal departments in establishing and maintaining the corporate attorney-client privilege. He also works with in-house legal departments in creating and implementing document- retention policies and procedures.

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SLIDE 79

For more information contact us:

Stavroula E. Lambrakopoulos, Esq. Partner K&L Gates LLP 1601 K Street, NW Washington, DC 20006-1600 Stavroula.lambrakopoulos@klgates.com O: 202.778.9248 www.klgates.com Todd Presnell, Esq. Partner Bradley Arant Boult Cummings Roundtable Plaza 1600 Division Street, Suite 700 Nashville, TN 37203 tpresnell@bradley.com O: 615.252.2355 www.bradley.com

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