Preparing Your Employees to be Witnesses in Civil Cases

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1 Preparing Your Employees to be Witnesses in Civil Cases ACC West Central Florida Chapter Corporate Counsel Symposium Longboat Key Club August 19, 2011 Presented by Fowler White Boggs P.A. Bob Olsen, Tampa Ceci Berman, Tampa (written material prepared by Hala Sandridge, Ceci Berman, and Bob Olsen)

2 PROLOGUE Preparing employees to be witnesses in civil cases Really starts BEFORE anything hits the fan!

3 Policies/Procedures that provide for: Recognizing problem events Knowing proper initial reaction

4 Such as: Avoiding unnecessary discussions or writings Identifying/Retaining pertinent documentation

5 GOAL: Protect privileges Avoid/Contain harm

6 GENERAL POINT When people don t KNOW what to do They often GUESS first, then ask

7 When You Get to Choose Your Employee Witness Initial Considerations Rule 30(b)(6)/Corporate Representative Rule 26 disclosures Representative for trial

8 When You Get to Choose Your Employee Witness Initial Considerations (continued) Common issues: Knowledge of facts and documents Purpose For example, if you are trying to introduce documents, is there another way to get the documents into evidence apart from using an employee?

9 When You Get to Choose Your Employee Witness Initial Considerations (continued) Prior experience testifying/sophistication Time commitment For example, make sure that the employee is not on vacation or otherwise unavailable during the time set aside for the deposition, or more importantly, for the trial. Review personnel file

10 When You Get to Choose Your Employee Witness Initial Considerations (continued) Demeanor (substance vs. presentability) Can witness handle subject? Can witness effectively convey testimony in transcript form? That is, will this employee convey the information in clear, methodical manner such that, a person later reviewing a cold record can easily understand and use the information to support a dispositive motion?

11 When You Get to Choose Your Employee Witness Initial Considerations (continued) Can witness present well to jury? You can always teach people substantive material that they may not know about the case. You cannot transplant a personality into someone who does not have one.

12 When You Get to Choose Your Employee Witness Initial Considerations (continued) Discretion: 30(b)(6)/Corporate Representative These witnesses speak for the company, not as individuals. They do not need personal knowledge of the facts about which they testify; they can be educated. Your outside counsel should consult with you about the best person(s) for this role because of your knowledge of the facts and the players /culture.

13 When You Get to Choose Your Employee Witness Initial Considerations (continued) Multiple witnesses -OR- Preparing many and narrowing down to one Rule 26 disclosures Remember that the rule calls for individuals likely to have information that the party may use to support its claims or defenses. It is about on whom you might rely in the future. There is control available.

14 Ethical Considerations Separate counsel for the employeewitness? More control when one lawyer, BUT Can be unavoidable if employee engaged in misconduct Also, separate counsel tips off opposing counsel to the conflict or potential conflict. Additionally, do not forget that if the employee is represented by separate counsel, neither you nor your outside counsel can contact the employee-witness directly. By the same token, be aware of Upjohn and the danger of placing too much emphasis on maintaining control.

15 Ethical Considerations (continued) Former employees: There are times when former employees are necessary and are your best witnesses. When that is the case, tread carefully. Are your communications privileged? Generally, if testifying about what they did in the course or scope of their employment, privilege attaches. However, carefully review your jurisdiction s treatment of any applicable treatment that might arise. You can pay them for time spent testifying. In fact, in some states, there might be situations where you are required to pay them.

16 Ethical Considerations (continued) Upjohn warnings: Upjohn warnings come from Upjohn v. United States, 449 U.S. 383 (1981). Some call these warnings corporate Miranda warnings. Upjohn is generally understood to apply when conducting internal investigations; however, consider giving the warning in other instances, too, such as when an employee might divulge information that is not criminal or corporate misconduct, but could result in the employee s termination. A basic Upjohn warning must make clear that the lawyer is holding a privileged and confidential interview of the employee, yet the lawyer represents only the company, and the company holds the attorney-client privilege, not the employee. Also, the company may disclose the employee s information. You want to avoid later claims such as: you failed to protect the employee s Fifth Amendment rights or that you did not advocate separate counsel to maintain control.

17 Ethical Considerations (continued) You and/or outside counsel represent only the company. Privilege belongs to company, not employeewitness. The communications with the employee are privileged, but the company can waive that privilege and disclose the information.

18 Ethical Considerations (continued) Information may be disclosed at company s discretion. Advise regarding retaining separate counsel. Strongly consider getting in writing. Written warning does not necessarily replace conflict waiver. Clearly, an employee may have a dilemma between failure to cooperate, which might put his or her job at risk and cooperating, which creates risk in certain situations of further action by the government or employer. The lawyer must walk a fine line between clear disclosure and scaring off the employee.

19 Ethical Considerations (continued) In 2009, the ABA White Collar Crime Committee provided a model Upjohn warning: I am a lawyer for or from Corporation A. I represent only Corporation A, and I do not represent you personally. I am conducting this interview to gather facts in order to provide legal advice for Corporation A. This interview is part of an investigation to determine the facts and circumstances of X in order to advise Corporation A how best to proceed. Your communications with me are protected by the attorney-client privilege. But the attorneyclient privilege belongs solely to Corporation A, not you. That means that Corporation A alone may elect to waive the attorney-client privilege and reveal our discussion to third parties. Corporation A alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you. In order for this discussion to be subject to the privilege, it must be kept in confidence. In other words, with the exception of your own attorney, you may not disclose the substance of this interview to any third party, including other employees or anyone outside of the company. You may discuss the facts of what happened but you may not discuss this discussion. Do you have any questions? Are you willing to proceed?

20 DEPOSITIONS Right Out of the Gate Confirm employee s general understanding Explain the privilege protections Encourages openness in discussions

21 Explain purpose of the deposition Discovery by Opponent Explain employee s role Honest, complete answers based on direct knowledge

22 EMPHASIZE They should not volunteer their insight. Just answer the questions Do not do the opponent s job for them This is not our day in court

23 Discuss WHY this employee is being deposed Pure fishing expedition Perceived familiarity with the issue Definite material involvement in the matter

24 EXPLORE their knowledge or involvement Simple chronology Side roads as necessary But COMPLETE the path

25 CONFIRM DISTINCTION BETWEEN Recollection & Speculation

26 Decide whether to press on or break up into future sessions Depending on degree of their involvement If helpful, get additional information for next session

27 DOCUMENT REVIEW Balance between Avoiding Surprise & Creating Confusion Less can be more!

28 The Deposition Experience Remind Them Recollection, not speculation! I don t know I ve never seen I don t recall Are all OK if true!

29 HOUSEKEEPING Format of the experience Anticipated attendees Understanding questions before venturing an answer Verbalizing responses Breaks

30 Objections Form Privilege Instruction

31 Their Mid-Stream Concerns How should I answer that? Should I have answered it that way? I gave a wrong answer?

32 Anticipate certain general approaches The good cop or bad cop Win you over or intimidate you Either way Remain calm/impassive

33 Anticipate certain specific approaches Repeating questions Rephrasing prior responses Asking compound questions Presuming facts We will handle through objections

34 Expect seemingly irrelevant questions Personal Inquiries Education, Family, Work History, etc. Generally appropriate foundation

35 TRIAL If you think the deposition made them nervous

36 A REAL BALANCING ACT Between the employee s peace of mind And the Company s best interests

37 OVERRIDING CONSIDERATION This IS our day in court! Credibility is KEY

38 GOAL Comfortable Prepared Appropriate

39 EXPLAIN the Trial Process TV Shows and Movies are horrible examples If possible, have them go watch a trial At least take them on a courtroom tour Get the TRIAL DATE on their calendar

40 REVIEW their role They should KNOW what they KNOW, And KNOW what they DON T KNOW. They should distinguish KEY points from MINUTIA They should testify to the Judge or Jury They should avoid in limine matters

41 EMPHASIZE that they represent the Company Be on time, Dress appropriately Listen to and Follow the Judge s instructions Don t forget the Rule

42 CROSS-EXAMINATION Less is DEFINITELY More!

43 IMPORTANT to KNOW their deposition testimony Avoid impeachment due to inconsistencies Address necessary inconsistencies

44 DO S Do listen to the entire question before answering Do think carefully about the question before answering Do stop testifying if we object to a question

45 DO NOT S Do not ask to consult us or seek a recess during cross Do not look over to us during cross Do not argue or refuse to answer

46 NEVER UNDERESTIMATE THE POTENTIAL BENEFIT Of ROLE PLAYING

47 Special Considerations for Senior Corporate Officers & Executives Protective order necessary to prevent apex deposition? Apex doctrine: Allows protective order with respect to deposition of high-ranking executives where officer has no unique knowledge regarding facts of the action and files a declaration stating his or her lack of knowledge. Party trying to take the deposition must show that the officer s deposition is necessary.

48 Special Considerations for Senior Corporate Officers & Executives (continued) Be aware that the apex doctrine has been applied in federal courts, but state courts in Florida are seemingly reluctant to apply it. See Carnival Corp. v. Rolls-Royce PLC, 2010 WL , *2-3 (S.D. Fla. Apr. 22, 2010); Chick-Fil-A, Inc. v. CFT Dev., LLC, 2009 WL , *1 (M.D. Fla. Apr. 3, 2009); Gen. Star Indem. Co. v. Atlantic Hospitality of Fla., LLC, 57 So. 3d 238, 240 n.3 (Fla. 3d DCA 2011) (refusing to render broad holding on application of apex doctrine, but noting that it was not adopting doctrine and referencing Fourth District s refusal to do so); Citigroup, Inc. v. Holtsberg, 915 So. 2d 1265, (Fla. 4th DCA 2005) (refusing to adopt apex doctrine because it arguably conflicts with discovery rules); but see Dep t of Agric. & Consumer Servs. v. Broward County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002) (applying apex doctrine in case involving deposition of senior state official); but cf. JMIC Life Ins. Co. v. Henry, 922 So. 2d 998, 1001 (Fla. 5th DCA 2006) (failing to apply apex doctrine based on facts of case, but noting no particular disapproval of doctrine itself).

49 Special Considerations for Senior Corporate Officers & Executives (continued) Unique challenges: Limited availability Lack of detailed familiarity with subject Vulnerability to company policy questions that are beyond the scope of knowledge of company witnesses Be ready to answer tough policy questions Ensure preliminary preparation concerning potential big picture questions relating to the subject of the litigation

50 The Take-Away Depending on the complexity of the case and the employee witness s role in the action, the proper preparation of a witness can take anywhere from an hour to days. Any such time will be well spent.

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