WHAT HAPPENS WHEN IN-HOUSE COUNSEL TAKES THE STAND

Copyright © 2013 Moye White LLP. All rights reserved.

WHAT HAPPENS WHEN IN-HOUSE COUNSEL TAKES

THE STAND

James Rollin Miller, Esq.Eric B. Liebman, Esq.Burkeley N. Riggs, Esq.Attorneys, Moye White LLP andGregory Ruegsegger, Esq.Vice-President & General Counsel, Furniture Row Companies

Presented by


Poll the Audience

Who here has been deposed on behalf of their employer/client while being employed as in-house counsel?

Who here has been a witness in an arbitration on behalf of their employer/client while being employed as in-house counsel?

Who here has been a witness in a federal court trial on behalf of their employer/client while being employed as in-house counsel?


Why Would In-House Counsel Ever Want to Take the Stand?

Many reasons, to name a few: In-house counsel wears many hats in a business

Oversight/regulatory Business advisors Scriveners Custodians of Record Investigators

Sometimes they are the ones who saw what happened Deal negotiators Human resources issues

Sometimes they are the designated company representative


The Attorney Client Privilege

Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection be waived.


The Work Product Doctrine

Hickman v. Taylor, 329 U.S. 495 (1947), defined “attorney work product” as covering both “tangible and intangible” information developed by an attorney in anticipation of litigation.

The Hickman work product doctrine was “partially codified” in Federal Rule of Civil Procedure 26(b)(3), which protects “documents and tangible things that are prepared in anticipation of litigation … by [a party’s] representative.”


Our Case

Abbott and Costello Enterprises, et al. v.

Robert L. Stevens, et al.


nce upon a time there was a Joint Venture between two Prescription Drug Manufacturers . . .


The Parties to the Dispute

The Claimants Abbott and Costello Enterprises – a joint venture

Joint Venture Participants Abbott Laboratories, Inc. Costello Chemical Company

The Respondents Robert L. Stevens, et al. A chemical engineer who along with 29 others left Abbott

Enterprises to form a new company to sell a competing product


The Parties Agreed to Arbitration

The parties have agreed resolve their dispute in arbitration

The parties have agreed that the Federal Rules of Procedure and Evidence apply

The parties previously agreed to engage in limited document production, limited written discovery, and no depositions


The Arbitrator and the Parties’ Representatives

The Arbitrator, James R. Miller, Esq.

Costello Chemical Co., General Counsel, Gregory A. Ruegsegger, Esq.

Burkeley N. Riggs, Esq., Attorney for Abbott and Costello Enterprises and Costello Chemical Co.

Eric B. Liebman, Esq., Attorney for Respondents


Where We Are in the Proceedings?

The joint venture agreement is ambiguous about whether Robert Stevens’ non-compete agreement was assigned to the joint venture.

Mr. Gregory A. Ruegsegger is about to take the stand to testify that it was the intent of the parties to assign all non-competition agreements to the joint venture.

The lawyers are arguing over whether the attorney client privilege has been waived by virtue of the claims and defenses in the lawsuit.


LESSON 1

When a lawyer acts as a business agent for a client or negotiates on behalf of a client, the lawyer’s actions in

that regard are subject to discovery and are not covered by the attorney-client privilege. Georgia-Pacific Corp. v. GAF

Roofing Manufacturing Corp., 1996 U.S. District Lexis 671 at *4 (S.D.NY. January 25, 1996).


LESSON 2

When on the stand, take care not to interject a claim, defense or argument that would implicate

documents and testimony otherwise covered by the attorney client privilege.


Section 17A of the Joint Venture Agreement

“Abbott Laboratories Inc. and Costello Chemical Co. each hereby assign to Abbott and Costello Enterprises any Employment Agreement for any employee responsible for working on the Anti-Aging Drug.”


J.P Foley & Co. v. Vanderbilt, 65 Frd. 523, 526 – 527 (S.D.N.Y. 1974).

When an attorney acts as a negotiator or business agent for the client, the confidential communications between them in preparation for the negotiation are discoverable.


When Can a Waiver by Affirmative Reliance Occur

A party is treated as having waived its attorney client privilege if “(1) assertion of the privilege was a result of some affirmative acts, such as filing a lawsuit, by the asserting party; (2) through this affirmative act the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Hearn v. Rhay, 68 F.RD. 574, 581 (E.D. Wash. 1975).


LESSON 3

Be careful about relying on “your file” to refresh your recollection while you are testifying in a deposition or

on the stand.


Memo from Mr. Young to Mr. Ruegsegger: Greg,We need to get this joint venture before I leave for the rest of the year on vacation. I am granting you the authority to get this deal done and negotiate it for the best interest of the company. I know that you have expressed some concern for the legal implications for not doing due diligence and that we need to protect the company. However, we need to get this deal done by Dec. 22 and we will tie up any loose ends after the deal is signed.


Waiver by Preparation or Refreshing Recollection of a Witness:

Waiver by Preparation or Refreshing Recollection of a Witness: Rule 612 of the Federal Rules of Evidence provides that an adverse party is entitled to have produced, cross-examined, and introduced into evidence, any writing used by the witnesses to refresh his recollection, either while testifying or during testimony, “if the court determines that it is necessary in the interest of justice.” Baily v. Meister Brau, Inc., 57 F.RD. 11, 13 (N.D. Ill. 1972).


July 10, 2012 Email from Mr. Ruegsegger to Mr.Young

Mr. Young:I am concerned as I indicated last December 2010 of our lack of due diligence with respect to the Joint Venture. Robert Stephens and other are competing against the Joint Venture and we will need to enforce their non-competes. We need to talk about Section 17(a) of the agreement before you leave the company for good, as I am worried that your successor will not be able to testify as to the intent of the corporation.


But Not for Work Product Doctrine

But see: A work product document used to refresh a witness's recollection does not fall into the realm of Rule 612, and does not have to be produced because the court determined that “in the interest of justice” language of Rule 612(2) is synonymous with the doctrine that disclosure of work product is allowed only when a party shows substantial need and could not obtain the information elsewhere. Medtronic Xomed v. Gyrus ENT LLC, 2006 U.S. Dis. LEXIS 17202, at * 13 (M.D. Fla. March 27, 2006).


LESSON 4 Waiver by Use of an Attorney as a Witness

When an attorney is called as an expert or fact witness, the privilege is deemed waived. Plaintiff has waived the

attorney-client privilege between himself and his attorney by indicating to the Court the intent to call his attorney as a fact witness. The defendant will need to

know all of the information forming the basis for the opinions of the attorney.

Rutgard v. Haynes, 185 F.Rd. 596, 600-01 (S.D. 1999).


LESSON 5 Waiver by Failure to Assert Privilege

Failure to assert the privilege at the first opportunity may result in waiver. Nquyen v. Exel Corp.,

197 F.3d 200 (5th Cir. 1999). Where no objection was interposed to questions concerning advice given by attorneys and a partial answer was provided, waiver occurred because of (1) failure to assert

privilege and (2) partial answer.


LESSON 6Waivers are Forever!!

Once Waived – Always Waived: Once a waiver of the attorney client privilege occurs, the privilege is generally treated as relinquished for all purposes thereafter. United States v. Krasnov, 143 F. Supp. 184, 190-91 (E.D. Pa. 1956).

Even in subsequent proceedings -- Panter v. Marshall Field & Co., 80 F.R.D. 718, 721-23 (N.D. Ill. 1978).


How to Avoid a Waiver… Seriously consider if your testimony is essential, or if another non-

lawyer witness is available

Consider designating non-lawyers as witnesses for the company If you have an advice of counsel defense consider abandonment of the

defense

Structure oversight personnel with non-lawyers

Be careful about what you bring to your depositions and hearings, and more importantly what you rely upon to refresh your recollection

And of course, pause to let your attorney get his objection out


THANK YOU!

James Rollin Miller, Esq.Eric B. Liebman, Esq.

Burkeley N. Riggs, Esq.Attorneys, Moye White LLP

andGregory Ruegsegger, Esq.

Vice-President & General Counsel, Furniture Row Companies

WHAT HAPPENS WHEN IN-HOUSE COUNSEL TAKES THE STAND

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