Attorney/Client Privilege Defined

Transcription

1 Attorney-Client Privilege For In House Counsel and the Use of Personal Electronic Devices and Social Media in the Workplace An Overview and Discussion May 19, 2011 Association of Corporate Counsel West Central Florida Chapter Attorney/Client Privilege Defined The attorney-client privilege exists in order that one who is, or seeks to become a client, may consult freely with counsel without fear of compelled discovery of information communicated by him to the attorney whom he has employed, or seeks to employ. -Wigmore 2 Attorney-Client Privilege Elements 1. Where legal advice of any kind is sought 2. From a professional legal advisor in his/her capacity as such 3. Then the communications relating to that purpose 4. Made in confidence 5. Are received by counsel 6. Are at the client s insistence permanently protected 7. From disclosure by the client or by the legal advisor 8. Except if the client waives the privilege - Wigmore, Evidence

2 Courts condense Wigmore s Elements into 4 Factors 1. Communication 2. Made between privileged persons 3. In Confidence 4. For the Purpose of Seeking or Providing Legal Assistance 4 Dilemma for Corporate Counsel and the Courts Defining the scope of the privilege for in-house counsel is complicated by the fact that these attorneys frequently have multi-faceted duties that go beyond traditional tasks performed by lawyers. Courts faced with applying traditional attorney-client privilege issues to corporate counsel may generally apply a different privilege standard to communications involving corporate counsel than to outside counsel. Courts have employed a variety of factors to determine whether communications involving corporate counsel are privileged. 5 Policy Justifications 1. Encourage clients to be completely truthful with their attorneys without the fear of disclosure so that the attorneys can give effective legal advice 2. By promoting a client s freedom of consultation with an attorney the privilege fosters voluntary compliance with regulatory laws and facilitates effective administration of the laws 6 2

3 Policy Justifications The purpose of the privilege is to encourage full and frank communications between attorneys and their clients and the privilege exists not only to the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. Upjohn Co. v. U.S., 449 U.S. 383 (1981) U.S. Supreme Court specifically addressing the attorney-client privilege in the context of a corporate client 7 Corporate Attorney-Client Privilege Generally accepted that a corp. is entitled to same protection of confidential communications as an individual See Fla. Stat. (2010) Shielding these discussions from discovery promotes general compliance with the law Corp. commonly consult with in-house counsel on how to comply with the law Employment Laws Contracts 8 Who May Raise the Privilege Complicated because the corporation can only communicate through its agents. Therefore, certain employees may claim the attorney-client privilege on behalf of the corporation. 9 3

4 I. Communication May be oral or written Silence? May not always protect attorney notes may not protect every communication U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp.156 (E.D.N.Y. 1994) In-house counsel s handwritten notes containing factual info from individuals who may not be clients are not privileged Might be able to claim privilege if the conveyors of the info are agents of the client, empowered for that purpose. 10 II. Privileged Persons Generally: The client The client s attorney Communicating agents of the client and/or the attorney Agents of the attorney for purposes of the representation 11 Corporation as a Client How to Determine who is a Privileged Person Control Group Test Only individuals in the control group defined as those employees in a position to control or take part in the determination of corporate action in response to legal advice, could act as the client for purposes of the privilege Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483 (E.D.Pa. 1962) 12 4

5 Corporation as a Client Subject Matter Test 1. Employee, not a member of the control group, made a communication to the corporation s attorney at the direction of a superior for the purpose p of obtaining legal advice for the corporation 2. The subject matter of the issue requiring attorney advice was within the scope of the employee s duties Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970) 13 Corporation as a Client Modified Subject Matter Test Added: the communication was not disseminated beyond these persons who, based on the corporate structure, needed to know its contents - Diversified Indus., Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977) - Florida Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) - Muro v. Target Co., 243 F.R.D. 301 (N.D. Ill. 2007) ( s containing privileged content sent by corporate counsel via a large list-serve were not privileged because not everyone on the list-serve could be identified) 14 Corporation as a Client Ampicillin Test Modified the Modified Subject Matter Test Replaced direction of corporate superior with a reasonable belief by the employee making the communication that the communication was necessary to the decision making process concerning a problem on which legal advice was sought In re Ampicillin Litigation, 81 F.R.D. 377 (D.D.C. 1978) 15 5

6 Corporation as a Client cont d Upjohn Co. v. U.S., 449 U.S. 387 (1981) - Rejected the control group test because it incorrectly focused on who was communicating as opposed to the substance of the communication - Expanded the scope of attorney-client privilege regarding corporate communications - Court stated that a determination of whether corporate attorney-client privilege existed was to be done on a case-by-case basis - But did not draft rules for applying the privilege and set forth a case-by-case standard 16 Element 3: In Confidence A communication is made in confidence if the client expressly so states or if the attorney reasonably so concludes Courts look to: Intent Location Means 17 In Confidence Complex issue in corporations because often communications must be filtered through many employees Bank Brussels Lambert v Credit Lyonnais (Suisse) S.A.,160 F.R.D. 437 (S.D.N.Y. 1995) (where decision making power of corporation is diffused among several employees the dissemination of confidential communications to such persons does not defeat the privilege) 18 6

7 In Confidence: Presence of a Recording Device The presence of a recording device in an attorney-client meeting may destroy the attorneyclient privilege. See U.S. v. Thompson, No , 2007 WL (C.D. Ill. Aug. 8, 2007) (a telephone conversation between an attorney and a client was not privileged when the client was aware that the telephone conversation might be recorded) 19 Element 4: For Purpose of Seeking or Obtaining Legal Advice To be privileged, communication must have been made primarily for the purpose of obtaining legal advice Upjohn Co. v U.S., 449 U.S. 383 (1981) communication privileged and protected from compelled disclosure because made to secure legal advice 20 Primary Purpose Test United States v. Chevron Corp., 1996 U.S. Dist. LEXIS 8646 (N.D. Cal. May 29, 1996) A party seeking to withhold discovery based upon the attorney-client privilege must prove that all of the communications it seeks to protect were made primarily for the purpose of obtaining legal advice. No privilege can attach to any communication as to which business purpose would have served as a sufficient cause, i.e., any communication that would have been made because of a business purpose, even if there had been no perceived interest in securing legal advice. The party asserting privilege over documents must demonstrate that the communications that are sought to be protected were made primarily for the purpose of generating legal advice 21 7

8 The Professional Legal Capacity Test Georgia-Pacific Railroad Corp v. GAF Roofing, 1996 U.S. Dist. LEXIS 671 (S.D.N.Y. Jan. 24, 1996) The application of the attorney client privilege turns on whether the communication is given in the attorney s capacity as a business advisor or office of the company or in the traditional role of lawyer. 22 Transmission of Privileged Documents Within the Corporation Generally, intra-corporate distribution of legal advice received from counsel does not destroy the privilege Idea is that the corporation must be properly informed of legal advice and able to act appropriately Premiere Digital Access, Inc. v. Central Telephone Co., 360 F. Supp. 2d 1168 (D. Nev. 2005) 23 Waiver of the Attorney Client Privilege Generally, privilege waived if: 1. A client communicates confidential information to a third party 2. An attorney reveals confidential information to a third party with the client s consent Can be intentional or inadvertent 24 8

9 Corporate Client Usually assumed by courts that corporate management acts on behalf of the corporation when issues of waiver are discussed. Therefore, usually, the privilege may only be waived by members of the control group Commodity Futures Trading Comm n v. Weintraub, 471 U.S. 343 (1985) U.S. v. De Lillo, 448 F. Supp 840 (E.D.N.Y. 1978) The Board of Directors may waive the privilege Tail of the Pup, Inc. v. Webb, 528 So. 2d 506 (Fla. 2d DCA 1988) And an individual director cannot go against the board s decision Wechsler v. Squadron, Ellendorf, Plesent, & Sheffield LLP., 994 F. Supp. 202 (S.D.N.Y. 1998) Unless the director is a whistleblower But if the director is wrong, he or she can be sued for breach of the director s corporate duty 25 Disclosure Within a Corporation If a member of control group conveys the attorney s advice to any other member of the control group the privilege is not waived Barr Marine Prods. Co., Inc. v Borg-Warner Corp., 84 F.R.D. 631(E.D.Pa. 1979) 26 Beyond the Control Group Upjohnsuggests a need-to-know limitation on sharing privileged information with employees who are not members of the control group Upjohn, 449 U.S. at

10 Florida Follows the Need-to-Know Requirement Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) 28 Waiver By Disclosure to Government Although government agencies carry big sticks, disclosure to it is like disclosure to any other third party. Courts reject notion of selective waiver: [A] party may not waive the attorney-client privilege for its own benefit to a third party government agency, then hide behind the privilege iil in civil iillitigation. Pensacola Firefighters Relief Pens. Fund Bd. of Trustees v. Merrill Lynch, 2010 WL (N.D. Fla. Feb. 5, 2010). Few exceptions. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596 (8 th Cir. 1977); Saito v. McKesson HBOC, Inc., 2002 WL (Del. Ch. Nov. 13, 2002), aff d, 870 A.2d 1192 (Del. 2005). 29 Some Protection On Scope: FRE 502 Advisory committee decided not to propose a selective waiver provision, it did limit scope. When disclosure is in a Federal proceeding or to a Federal office or agency, waiver is limited to what is actually disclosed unless: Waiver is intentional; Communications concern same subject matter; and Communications ought in fairness to be considered together. Exception is for unusual circumstances in order to prevent a selective and misleading presentation of evidence to the adversary

11 Inadvertent Waiver Every state is different There are three basic approaches: The Lenient Approach There is no waiver as long as there has not been a knowing and intentional relinquishment of the privilege The Intermediate Approach The court examines several factors to determine whether the disclosing party was reasonable in their actions The Strict Approach Once a disclosure has occurred, the privilege has been waived, regardless of intent 31 Inadvertent Waiver Florida takes a middle of the road approach Abamar Housing and Dev. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997) Inadvertent disclosure of privileged documents did not waive privilege where demonstrated that reasonable precautions were taken to prevent inadvertent disclosure 32 New Rule in Florida Fla. R. Civ. P governing inadvertent disclosure became effective 1/1/2011. Three principal provisions: A party who inadvertently discloses may serve notice within 10 days of discovery. Receiving party must return, sequester, or destroy, and take steps to retrieve materials disclosed. Receiving party may challenge privilege, including on waiver grounds. Rule does not address substantive question of whether and when an inadvertent disclosure constitutes waiver

12 Limited Waiver-Florida Paradise Divers, Inc. v. Upmal, 2006 WL (Fla. 3d DCA 2006) (not a complete waiver where party produced privileged documents relating to its advice of counsel defense, but invoked privilege on other documents. 34 Inadvertent Waiver: Factors for Reasonableness Some of the factors a court can look at to determine reasonableness in a middle of the road approach are: The precautions taken to prevent an inadvertent disclosure The number of inadvertent disclosures The extent of the disclosures Any delay in measures taken to rectify the disclosures Any overriding interests in justice 35 Inadvertent Waiver and Document Management Systems Victor Stanley, Inc. v. CreativePipe, Inc., 2008 WL (D. Md. May 29, 2008). A corporation s methods to prevent inadvertent disclosure during discovery were not reasonable when the corporation attempted t to retrieve all privileged il documents from a data-base using a keyword search of 70 terms, but could not demonstrate to the court: The strategy behind choosing the keyword terms The qualifications of the persons who selected the terms That quality-assurance tests were intermittently conducted 36 12

13 Exceptions to the Attorney Client Privilege (Federal) Courts have recognized certain contexts in which the attorney-client privilege might be expected to exist but can be challenged by other means: 1. Fiduciary Exception 2. Crime or Fraud Exception 37 Fiduciary Exception Garnerdoctrine permits the piercing of the corporation s privilege for the benefit of the corporation s shareholders Garner v. Wolfinbarger, 430 F2d1093 F.2d (5th Cir. 1970) May expand beyond the derivative capacity Securities fraud In re Diasonics Sec. Litig., 110 F.R.D. 570 (D. Colo. 1986) 38 Crime or Fraud Exception Broader reach than Garner doctrine 1. Must be an ongoing or future-contemplated action 2. If occurred, privileged, unless cover up is contemplated 3. Attorney s advice must be sought by the client to help effectuate the crime or post-commission cover-up In re Grand Jury Investigation (Schroeder), 842 F.2d 1223 (11th Cir. 1987) (exception applies even where the attorney is unaware of the client s criminal or fraudulent purpose) In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) (waiver is limited to communications and documents in furtherance of the ongoing criminal or fraudulent conduct) 39 13

14 Crime or Fraud Exception: Limitation Safe harbor provision of 18 U.S.C. 1515(c) serves as absolute bar to prosecution for obstruction of justice where attorney provided bona fide legal services in connection with or anticipation of an official proceeding. Court will examine whether attorney acted in good faith. In U.S. v. Stevens, the court granted a Rule 29 motion to acquit an inhouse attorney who was on trial for obstruction of a proceeding and concealment of documents, some of which had been withheld as privileged. A different court previously had ordered the production of the documents pursuant to the crime-fraud exception. However, the criminal court determined that the attorney had acted in the course of her bona fide legal representation of a client and in good faith reliance of both external and internal lawyers for GlaxoSmithKline. See Rule 29 Mo. Tr. 3-11, U.S. v. Stevens, No. RWT , (D. Md. May 10, 2011). 40 Exceptions to the Attorney Client Privilege (Florida) Florida (Fla. Stat (4)) recognizes the following exceptions to the Attorney-Client privilege: 1. Crime-Fraud 2. Testamentary- Caputo v. Nouskhajian, 871 So. 2d 266 ( Fla. 4th DCA 2004) (communications between decedent and his attorney concerning decedent s intent were not protected by the privilege where decedent s brother and sister were both claiming same assets) 3. Breach of Duty- limited to issue(s) of breach 4. Lawyer as Attesting Witness 5. Joint Clients 41 Discussion Questions 42 14

15 ATTORNEY AS RECIPIENT Your company is looking to expand its retail operations into a new market. The head of the business unit drafts a memorandum to the CEO outlining the benefits and risks of expanding into a new territory. You are copied on the memorandum. The memo is later sought in litigation. Is it privileged? 43 Not Privileged U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp 156 (E.D.N.Y. 1994) No privilege for documents that were: Forwarded to in-house counsel Copied to in-house counsel Attorney s handwritten notes where no indication that legal advice was sought or given A corporation cannot be permitted to insulate its files from discovery simply by sending a CC to in-house counsel Barr Marine Products Co., Inc. v. Borg-Warner Corp., 84 F.R.D. 631 (E.D. Pa. 1979) It would seem obvious that business communications cannot be insulated from discovery by virtue of the mention of an attorney s name, or their being directed to an attorney. 44 Attorney as Document Depository or Incidental Recipient Med. Waste Techs v. Alexian Bros. Med. Ctr., Inc., 1998 WL (N.D. Ill. June 24, 1998) One cannot merely hand over documents to an attorney and have them be protected by the attorney client privilege Leading Florida Case U.S. v. Lockheed Martin Corp., 995 F. Supp (M.D. Fla. 1998) Records of interviews of employees not protected by attorney client privilege where interviews were ordered and administered by corporation s audit director and attorney was present merely to gather information 45 15

16 IN-HOUSE COUNSEL AS BUSINESS ADVISOR You are in-house counsel for a government agency that recently conducted a reduction in force (RIF). The agency is now being sued for age discrimination in connection with the RIF. You are not counsel of record. You were involved in organizing and implementing the RIF. You played a significant role in framing or communicating the RIF to employees and the public. You played a key role in the agency s preparation of RIF regulations. The plaintiff wants to depose you. The agency moves for a protective order preventing the deposition on the grounds that you are counsel for the agency and you participated in the early stages of the agency s defense of this litigation. 46 Not Privileged Evans v. Atwood, No CIV. A (RMU), 1999 WL (D.D.C. Sept. 9, 1999) According to the court in Evans v. Atwood, in-house counsel s role in the challenged RIF was so significant that his testimony was necessary to the plaintiffs case. Further, he was not counsel of record in the litigation. Acknowledging the agency s legitimate concerns about the attorney-client privilege, the court expressly reserved the agency s right to object to any questions that implicated the privilege. il In a footnote, the court indicated that communications between inhouse counsel and agency officials which are not strictly legal may not be protected by the privilege: Because an in-house lawyer often has other functions in addition to providing legal advice, the lawyer s role on a particular occasion will not be self-evident as it usually is in the case of outside counsel. 47 In-House Counsel as Business Advisor Business aspects of a decision by in-house counsel are not protected simply because legal considerations are involved Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987) 48 16

17 In-house Counsel Legal Advice is Privileged, Business Advice is Not Courts have imposed a heavy burden on corporations seeking to protect communications with persons holding dual legal and non-legal roles. In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) Government sought testimony from in-house attorney who was also a company VP with responsibilities in addition to legal duties. Held: Company can only assert a privilege upon clear showing that advice was given in a professional legal capacity 49 In-house Counsel Legal Advice is Privileged, Business Advice is Not In re Grand Jury Proceeding, 68 F.3d 193, 196 (7th Cir. 1995) A client does not lose the privilege merely because his attorney services a dual role 50 Advice about Legal Consequences of Business Options is Generally Privileged In re Grand Jury Subpoena Duces Tecum (Marc Rich), 731 F.2d 1032 (2d Cir. 1984) Privilege attached to legal advice concerning the mechanics and tax consequences of alternative business strategies 51 17

18 INTERNAL AUDITS You are an attorney employed by a corporation that undertook a major internal audit to review accounting performed on a large government contract knowing that issues existed concerning that accounting. The initial phase of the audit was conducted by an internal audit manager with no involvement by you. The second phase of the audit (root cause analysis) was initiated. During phase two, employee interviews were conducted and you participated in some of them. After the completion of the audit, the audit manager drafts a report and recommendation. The R&R is sent to you only. You edit and revise the R&R and use it to give oral advice to company executives. Subsequently, in litigation involving the accounting, the other side seeks to discover the employee interviews and report recommendation. Your corporation claims work product and/or subject to attorney client privilege for these attorney documents. 52 NOT PRIVILEGED/PRIVILEGED United States v. Lockheed Martin Corp., 995 F. Supp (M.D. Fla. 1998) Employee Interview: In the Lockheed Martin case, the record did not support that the attorney planned or conducted the interviews. Instead, the record established that the interviews were the corporation s effort and the attorney attended and participated in some so that she could get a better sense of the situation. The interviews were not the attorney s work product. Plus, the audit was conceived as part of Lockheed s business activity, not in anticipation of litigation. R&R Privileged: Communication between audit manager and lawyer. Purpose was to advise executives about legal issues and contained attorney s own analysis. 53 Internal Investigations Company conducts an internal investigation into allegations of improper accounting practices. The SEC and DOJ simultaneously begin investigating the same conduct, and ask for a report on the internal investigation. Company s counsel agrees to meet, but confirms that no documents will be provided. Counsel subsequently meets and discusses investigation, with an emphasis on witness interviews. Company executive is subsequently criminally charged, and subpoenas the interview memos and other documents regarding the investigation. Can he get them? 54 18

19 Maybe The good: United States v. Fago, 238 F.R.D. 3 (D.D.C. 2006) Presentation to government did not waive work product protection as to undisclosed documents. The bad: SEC v. Roberts, 254 F.R.D. 371 (N.D. Cal. 2008) Presentation to government waived attorney-client and work product privileges as to written material that was orally discussed with government. The ugly: United States v. Reyes, 239 F.R.D. 591 (N.D. Cal. 2006) Presentation to government waived attorney-client privilege as to all interview memoranda; Argument that no written materials were provided was specious because the purpose was the transmission of privileged information. 55 Some considerations Cases in the area turn on finely honed factual distinctions, and not possible to predict with certainty. If you need to present -- a just the facts presentation best limits the risk of waiver. FRE 502 provides downside protection. United States v. Treacy, No. S2 08 CR 366(JSR), 2009 WL (S.D.N.Y. Mar. 23, 2009) ( Here, Akin Gump and its client, the Special Committee, have no adversary in this action, and there is no suggestion of selective or misleading conduct. To the contrary, all of the interview memoranda that were disclosed to the Government have now been provided to defendant. Accordingly, the instant case does not present any of the unusual circumstances that would otherwise require a finding of waiver. ). 56 WHO IS THE CLIENT: THE CORPORATION OR INDIVIDUAL EMPLOYEES? Company hires regular counsel to conduct internal review of accounting practices in anticipation of SEC investigation, with the idea of sharing results with auditors, cooperating with regulators, and self-reporting if necessary. CFO is a part of the decision to conduct the review, and is simultaneously being represented by same counsel in an unrelated securities class action. The class action is subsequently amended to include the subject of the review. The CFO is then interviewed as a part of the review. Lawyers do not provide Upjohn warning, and there is no discussion of the civil suit. Later, lawyers advise CFO to retain independent counsel. Lawyers also disclose results of review, including communications with CFO to government. Government charges CFO. Can CFO assert the privilege? 57 19

20 No, at least on these facts United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009). District court found privilege applied, and referred company s lawyers to bar. Appellate court reversed: No expectation of confidentiality. CFO was no ordinary employee. CFO was intimately involved in the review. CFO knew there would be disclosure to third parties, even if not government. 58 Practical Issue Corporate employee consults w/corporate counsel regarding the employee s own potential civil or criminal liability - What should In-house counsel do? - Who holds the privilege? 59 Practical Issue: Employee Interviews Where risk that employee has personal liability, counsel is ethically required to warn employee that corporate counsel doesn t represent employee in individual capacity BEFORE questioning by corporate counsel 60 20

21 Client- Corporation or Individual Employees? An individual s subjective belief that he was represented by corporate counsel is not sufficient to create an attorneyclient relationship and no privilege may attach In re Grand Jury Subpoena, 415 F.3d 333 (4th Cir. 2005) (internal investigation-belief was not reasonable under the circumstances) U.S. v. Evans, 113 F.3d 1457 (7th Cir. 1997) (presence of third party defeats attorney-client privilege even though client may harbor desire for confidentiality) 61 Former Employees You are counsel for Initech. You have been asked to prepare Milton, a former Initech employee for his deposition in the Lumbergh/Swingline matter. During your deposition prep you discuss with Milton: 1. Your communications with Milton when he was employed by Initech regarding this matter; 2. Testimony of other witnesses in the Lumbergh/Swingline matter. During the deposition, apposing counsel asks Milton about predeposition communication with you. You object on the basis of privilege. Later, after a break, opposing counsel asks Milton about any discussions with you during the break. Milton tells opposing counsel you are acting as his attorney for this deposition and case. You object on the basis of client privilege. 62 Probably Not Privileged 1. Privileged information obtained by the former employee while employed by the Company (including information conveyed by counsel during that period) remains privileged. Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999) But Refused to extend privilege to deposition prep. If conversation went beyond employee s activities within the course of her employment And Discussion during a break as to how a question should be handled... not shown to be entitled to any privilege. Also No privilege for pre-deposition communications despite claim that company counsel was acting as her attorney. Wade Williams Distribution, Inc. v. American Broadcasting, No. 00 Civ. 5002(LMM), 2004 WL (S.D.N.Y. June 30, 2004) (The mere volunteered representation by corporate counsel of a former employee should not be allowed to shield information which there is no independent basis for checking within the attorney-client privilege. ) 63 21

22 Practical Suggestions 64 Practical Suggestions for In-House Counsel to Protect the Privilege A. Label Written Materials Legal communications between employees and in-house counsel should be labeled as privileged and confidential In-house counsel should assume the primary responsibility for the maintenance of documents regarding privileged communications 65 Practical Suggestions for In-House Counsel to Protect the Privilege B. Legal Advice Corporation should seek advice from in-house counsel that has legal ramifications In-house counsel should avoid handling matters that are usually the responsibility of business executives Communicate business and legal advice in separate documents 66 22

23 Practical Suggestions for In-House Counsel to Protect the Privilege C. Corporate Meetings Prior to meetings, in-house counsel should be advised about the topics to be discussed In-house counsel can alert corporate representatives that some communications may not be protected Keep detailed records of the meetings Assist in determining which communications involved legal services and should be protected 67 Practical Suggestions for In-House Counsel to Protect the Privilege D. Internal Investigations Hire outside counsel Avoids bias against in-house counsel by courts If in-house counsel investigates: interview employees within the control group and solicit information to be volunteered by other employees If you want to use the investigation defensively, be prepared to waive. 68 Practical Suggestions for In-House Counsel to Protect the Privilege E. Avoiding Inadvertent Disclosures When Using a Document Management System During Discovery When developing a data-base search, make sure to keep a record of how and why the search was developed Make sure the persons developing and conducting the search are qualified to do so Conduct intermittent quality assurance tests periodically take a sampling of documents and manually review for privileged documents 69 23

24 DISCOVERY ISSUES 70 Social Media Discovery Stored Communications Act specifically prohibits electronic communication providers from disclosing the contents of electronically stored communications or identity of subscribers Rule 45 subpoenas not an exception Rule 34 production requests may provide some help, but relevancy rules apply 71 PED Discovery Federal and state discovery rules are potentially behind the developing technology Rapidly changing technology potentially becoming an increasingly important source of evidence in criminal and civil cases 72 24

25 PED Discovery PED data is easily overlooked PED data more vulnerable to damage or destruction than conventional ESI data Volatile memory makes continued existence of PED data less certain than conventional computer data 73 PED Discovery To the extent that data like IM is retained in the ordinary course of business, IM may, like , constitute ESI and may be discoverable 74 PED Discovery Important to become educated about clients (both internal and external) uses of PED s who has them how they are used what may be stored on them whether data is backed up where it can be retrieved, etc

26 Approaches to Preserving PED Information Freezing the device Cloning the device Forensic acquisition and preservation of PED data 76 Approaches to Producing PED Information Forensic PED expert Manual acquisition Direct review 77 QUESTIONS 78 26