Best Practices For NC In House Counsel To Avoid Being Deposed

Transcription

1 womblebonddickinson.com Best Practices For NC In House Counsel To Avoid Being Deposed Presentation to the Charlotte Chapter of the ACC November 1, 2017

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5 Attorney Work Product United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 247 (D. Kan. 1995). Fed. R. Civ. P. 26(b)(3) clearly contemplates discovery from attorneys as well as from the parties themselves or their agents. Requesting party must prove substantial need and the inability to obtain through other means. FRCP 26(b)(3)(ii). 5

6 Avoiding the Sucker Punch! As one court colorfully summarized, A party shouldn t be able to use a deposition to sucker punch the other side s quarterback or listen in on the other side s huddle. Cascone v. Niles Home for Children, 897 F.Supp. 1263, 1267 (W.D. Mo. 1995). 6

7 How It Arises (1) Subpoena or Deposition Notice (2) Motion to Quash (3) Court Examines the Proposed Scope 7

8 GOAL: (1)No Discovery OR (2)Protective Order Less Desirable: Question by Question 8

9 Shelton v. Ameri. Motors Corp. 805 F2d 1323, 1327 (8 th Cir 1986) Did the trial judge properly impose sanctions on in-house counsel for refusing to answer questions as to whether she possessed documents concerning testing performed on the vehicle involved in the death case? Eighth Circuit Reversed Sanctions The questions would provide a road map of litigation strategy, work product doctrine protected. 9

10 The Shelton Rule Under Shelton, the party seeking to depose the opposing party s counsel has the burden to show: 1) No other means exists to obtain the information than to depose opposing counsel, 2) the information sought is relevant and non-privileged, and 3) the information is crucial to the preparation of the case. When does Shelton criteria apply? In general, when trial or litigation counsel are being deposed and the questioning would expose litigation strategy in the pending case. 10

11 U.S.A. v. Philip Morris, Inc., 209 F.R.D. 13, 156, 2002 U.S. Dist. LEXIS (D.D.C. Aug. 23, 2002). Shelton factors were inapplicable because: The deponents were employees to whom the company had knowingly assigned substantial non-legal, non-litigation responsibilities, including corporate, business, managerial, public relations, advertising, scientific, as well as research and development responsibilities. The government was not seeking to depose the various in-house counsel about the defense or litigation strategies related to this case. The principal rationale driving the Shelton decision was not raised by the facts of this case. The proposed deponents were not litigation or trial counsel. 11

12 Edison v. Acuity Healthcare 2016 WL NC Business Court decision in wrongful termination case No NC appellant court has adopted the Shelton approach (although it has been followed by 2 federal district courts in NC) In house counsel had relevant facts Not substantially involved in litigation Protective Order Denied

13 How Does It Happen? Fact Witness Is a lawyer s conduct the basis of a claim or a defense? Verification of pleadings Documents written in your name Affidavits 12

14 Your Job Description Corporate decisions to allow inhouse counsel to wear multiple hats comes at a cost. In-house litigators assuming additional duties can create problems. 13

15 Meetings Purpose in attending meetings: Is it to provide legal advice or for others to seek legal advice? 14

16 Wright. v. Life Investors, Ins. Co. of America, 2009 U.S. Dist. LEXIS at *6-7 (N.D. Miss. Nov. 24, 2009). The Shelton factors were not controlling since the lawyer whose deposition was sought had acted primarily in a business capacity. 15

17 Decision-Making Avoid situations where the only person capable of answering the question is the lawyer, i.e., an example would be an ultimate decision maker. 16

18 Witnessing Events The decision maker will always be deposed in an adverse employment action. The ultimate decision maker should be someone else and the decision should be conveyed by someone else. In-house counsel should not be present for the meeting. Obviously, in-house counsel can offer a legal opinion, but in-house counsel should not be the final decision maker. 17

19 Investigations Be cautious in playing a significant role in investigating. For example, tread carefully when taking notes during investigations. Being a fact gatherer means that notes taken may be discoverable if such notes are not privileged. 18

20 In the course of an investigation, in-house counsel should include a statement limiting circulation of a memorandum to those on a need-to-know basis. Mark the memorandum as privileged and define the purpose of the investigation both in the memo and orally to anyone being interviewed. Gather information for the purpose of providing legal advice. Include mental impressions in the memorandum, i.e., opinions about the witness credibility. 19

21 Blinding Glimpse of the Obvious Remember that the attorneyclient privilege does not protect against the disclosure of facts. 20

22 Tips Searching files during the discovery process can make the attorney a fact witness regarding discovery compliance. If a lawyer is going to have dual roles, written job responsibilities should distinguish legal counsel role. Documents created in the ordinary course of business should be segregated from those created in anticipation of litigation. NOTE: LEGAL HOLD BEGINS WHEN WORK PRODUCT IS TRIGGERED! 21

23 If There Is Litigation Consider internal memo designating in-house counsel to oversee litigation. Consider whether in-house counsel should make a record by entering an appearance. 22

24 Murphy v. Adelphia Recovery Trust, 2009 U.S. Dist. LEXUS (N.D. Tex. 2009) Subpoena quashed because although the subpoenaed lawyer was not trial counsel, she was part of the litigation team and participated in strategy discussions, assisted in drafting pleadings, met with witnesses, and helped collect and review documents. 23

25 If you are Deposed Having separate counsel for the in-house lawyer can eliminate conflict of interest concerns. A separate unbiased attorney to advise the in-house lawyer regarding ethical mandates and privilege assertions. Objections and instructions not to answer may still be appropriate. 24

26 Questions? Mark Henriques Partner Womble Bond Dickinson One Wells Fargo Center, Suite South College Street Charlotte, NC (work) (mobile) (fax) 25

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