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 THURSDAY, OCTOBER 27, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Stavroula E. Lambrakopoulos, Partner, K&L Gates , Washington, D.C. Todd Presnell, Partner, Bradley Arant Boult Cummings , Nashville, Tenn. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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In-House Counsel Communications with Employees During Litigation Process: Protecting Attorney-Client Privilege and Work Product Strafford Publications CLE Webinar October 27, 2016
YOU’VE GOT……A COMPLAINT! NOW WHAT????? 6
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 7
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 8
A DETERMINING FACTOR IN WHETHER PRIVILEGE APPLIES: WHICH HAT ARE YOU WEARING? 9
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 ????????? 10
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 order to obtain leverage for the company Privilege is a double-edged sword fostering candor and protecting documents but preventing their use later on. 11
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? 12
DISCOVERY OR INFORMATION REGARDING EMPLOYEE INTERVIEWS AND EMPLOYEE STATEMENTS BY ADVERSE PARTIES Attorney-client privilege Corporate attorney-client privilege In-house counsel Practice tips 13
14
Communication Written Oral 15
Confidential Confidential when made Intent to Remain Confidential 16
Legal Purpose 17
Corporate Attorney-Client Privilege Employee — Outside Counsel Employee — In-House Counsel 18
Corporate Attorney-Client Privilege Employee — Employee In-House Counsel — Outside Counsel 19
Corporations? Control Subject Group Matter Test Test 20
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. 21
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 22
Control Group Subject Matter 23
What about consultants? 24
Subject Matter Control Group Undecided MICHIGAN W MICHIGAN W W W W W W W W 25
In In-Hous ouse e counse unsel l ar are la lawyer ers, , too 26
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. 27
In-House Counsel Legal Hat or Business Hat 28
Dual-Purpose Communications TWO Because Primary of Purpose STANDARDS 29
What do the judges say? 30
Copying In-House Lawyer Merely copying or “cc - ing” legal counsel, in and of itself, is not enough to trigger the attorney – client privilege. 31
Email Attachments Although the email to which the memorandum is attached is marked “private” the memorandum itself contains no similar designation. 32
“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. 33
“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. 34
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 . 35
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. 36
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. 37
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