Evaluating the Demand Letter

Transcription

1 Evaluating the Demand Letter and What To Do After You Receive It May 15, 2018 Christine B. Lucy, Associate General Counsel, Booz Allen Hamilton Deborah Kelly, Partner, Manatt, Phelps & Phillips, LLP Nigel Wilkinson, Partner, Manatt, Phelps & Phillips, LLP

2 What Is a Demand Letter? 1 Letter from the employee s attorney setting out their allegations, often with: Hyperbole Slanted facts Arbitrary Demands Absurd Deadlines?

3 What to Do When You Receive It? 2 Read it all Don t give defensive detailed response Give cursory we ve received and will look into it response

4 Housekeeping: Protect the Company 3 Issue a litigation hold notice to all employees relevant to the allegations Notify insurance carrier

5 Contents of the Litigation Hold Letter 4 Why necessary, and the negative effect if you fail to do so Scope of relevant evidence to preserve Instructions for saving and sequestering relevant documents Confidential nature of investigation, and that employees should not discuss the dispute or investigation with others Notice that the litigation hold will continue until the recipient is informed otherwise The name and contact information of counsel if any assistance is needed A request to acknowledge receipt

6 Who Should Respond? 5 Factors to consider: Experience of in-house counsel Types of claims and allegations Job level of the employee Risk to the organization vs. In-house Outside

7 Did Employer Have Prior Obligation to Investigate or Not? 6 What s the difference between generic complaining and a Complaint that triggers action? What is protected activity? E.E.O.C. v. Newport News Indus. Corp., No. 7:13 CV 203 BO, 2014 WL , at *3 (E.D.N.C. Mar. 5, 2014)

8 Set Up the Interviews 7 Figure out who should be interviewed Provide notice to appropriate employees: Re: They may be asked to, but need not agree to, be interviewed by plaintiff s counsel

9 Confidentiality 8 Assure confidentiality to the greatest extent possible Note: conflict with Section 7, NLRA?

10 No Retaliation 9

11 Conducting an Internal Investigation 10 Benefits of a proper investigation: Find out factual basis for ee s conclusion that conduct was unlawful If conduct unprofessional or unlawful What is appropriate response If sanction: prevent and deter future misconduct Consider how to close the loop with complainant without inappropriate level of detail Somewhat free discovery: helps to prepare proper defense to allegations, and in some cases, maintain affirmative defenses to liability (i.e. Faragher-Ellerth affirmative defense)

12 Employee s Expectations of Privacy 11 Employees have little privacy at the workplace All communications on the employer s property (i.e. work , work phone messages) are not private Employee s personal, password-protected and other accounts should not be accessed For a contentious or potentially litigious termination or resignation, save: The employee s work file The employee s work phone All documents relating to the employee

13 Maintain Privilege 12 Communication between the company s counsel and company s employees are generally privileged, so long as certain steps are taken to maintain the privilege. Before each witness interview, provide Upjohn Warning, stating: Counsel represents the company and not the employee The purpose of the interview is to learn facts in order to provide legal advice to the company The interview is confidential and protected by the attorney-client privilege The company holds the privilege, not the employee The company may decide to disclose the information obtained during the interview to third parties Upjohn

14 Preserving Documents 13 Spoliation: [T]he destruction or material alteration of evidence or to the failure to preserve property for another s use as evidence in pending or reasonably foreseeable litigation. The duty to preserve evidence arises when a party reasonably should know that the evidence may be relevant to anticipated litigation. Elements of Spoliation: Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001) The party with control over the evidence had a duty to preserve it at the time it was destroyed or materially altered; The evidence was destroyed or materially altered with a culpable state of mind ; and The evidence was relevant to the claims or defenses of the matter to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it. Muhammad v. Mathena, 2016 WL , at *4 (W.D. Va. Dec. 12, 2016)

15 Potential Sanctions for Spoliation 14 Case dismissed or judgment by default Evidence Precluded Adverse inference instruction Certain arguments or introduction of other evidence excluded Monetary fine Attorney s fees and costs assessed.

16 Hypothetical #1 15 Plaintiff s lawyer sits in when his client (existing employee) is interviewed by HR as it follows up on her internal complaint. Plaintiff later alleges she was threatened during that interview. Can you call the Plaintiff s lawyer as a witness and if so, could you move to disqualify him?

17 Hypothetical #2 16 Same Plaintiff sues Co. in court and in pleading says company failed to conduct prompt and through investigation and did nothing for six weeks. Truth is despite defense counsel repeatedly writing and ing Plaintiff s counsel, he never responded so company didn t think it should proceed without his approval or participation which was not forthcoming for all that time. Can Co. call Plaintiff s counsel as a witness to defend against allegation it dragged its feet in investigating?

18 Hypothetical #3 17 Co. hires third party investigator to conduct internal investigation into new internal complaint by same plaintiff who has already sued Co in Court). Plaintiff s counsel says he is not representing her in this new internal complaint. Third party investigator reaches out to outside counsel because Plaintiff is being difficult, not answering questions, rescheduling/cancelling meetings at the last minute, etc. Plaintiff later amends Court complaint to include new charges. Can Plaintiff call you - defense lawyer - and argue you are witness to fact that investigation is not neutral because you unduly influenced the third party investigation?

19 Questions? 18