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. 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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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.
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
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
MICHIGAN
MICHIGAN
Subject Matter Control Group Undecided
W W W
W W
W W
W W
25
In-House
counsel are
lawyers, 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
Because
of
Primary
Purpose
TWO
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
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?
38
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
o Clearly Marked as PRIVILEGED & CONFIDENTIAL
o FORWARDING should be strictly prohibited or restricted (mark DO NOT
FORWARD)
o Documents Containing Privileged Communication Should be Safe-Guarded
o Limit distribution list on a “need to know” basis
39
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
40
WORK-PRODUCT DOCTRINE
Not an evidentiary privilege
41
WORK-PRODUCT DOCTRINE
Burden
Shifting
42
Requesting Party
Relevant
Not
otherwise
privileged
Documents
or materials
43
Opposing Party
Anticipation
of
litigation
By party or
party’s
lawyer
No Waiver
44
FACT WORK
PRODUCT
V.
OPINION WORK
PRODUCT
45
Requesting Party
Substantial
Need
Unable to
obtain w/o
undue
hardship
Fact Work Product Articulate with
specificity
46
Requesting Party
Substantial
Need
Unable to
obtain w/o
undue
hardship
Opinion Work Product
But …
47
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
48
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
49
FRCP 26(B)(3)(C)
50
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).
51
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
or anticipated litigation.
Disclosure can be ordered if the adverse party cannot obtain a substantial equivalent
to the underlying facts or documents without “undue hardship”
52
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