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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 and Gregory Ruegsegger, Esq. Vice-President & General Counsel, Furniture Row Companies Presented by
Copyright © 2013 Moye White LLP. All rights reserved. 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?
Copyright © 2013 Moye White LLP. All rights reserved. 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
Copyright © 2013 Moye White LLP. All rights reserved. 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.
Copyright © 2013 Moye White LLP. All rights reserved. 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.”
Copyright © 2013 Moye White LLP. All rights reserved. Our Case Abbott and Costello Enterprises, et al. v. Robert L. Stevens, et al.
Copyright © 2013 Moye White LLP. All rights reserved. nce upon a time there was a Joint Venture between two Prescription Drug Manufacturers...
Copyright © 2013 Moye White LLP. All rights reserved. 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
Copyright © 2013 Moye White LLP. All rights reserved. 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
Copyright © 2013 Moye White LLP. All rights reserved. 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
Copyright © 2013 Moye White LLP. All rights reserved. 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.
Copyright © 2013 Moye White LLP. All rights reserved. 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).
Copyright © 2013 Moye White LLP. All rights reserved. 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.
Copyright © 2013 Moye White LLP. All rights reserved. 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.”
Copyright © 2013 Moye White LLP. All rights reserved. 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.
Copyright © 2013 Moye White LLP. All rights reserved. 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).
Copyright © 2013 Moye White LLP. All rights reserved. LESSON 3 Be careful about relying on “your file” to refresh your recollection while you are testifying in a deposition or on the stand.
Copyright © 2013 Moye White LLP. All rights reserved. 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.
Copyright © 2013 Moye White LLP. All rights reserved. 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).
Copyright © 2013 Moye White LLP. All rights reserved. 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.
Copyright © 2013 Moye White LLP. All rights reserved. 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).
Copyright © 2013 Moye White LLP. All rights reserved. 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).
Copyright © 2013 Moye White LLP. All rights reserved. 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 (5 th 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.
Copyright © 2013 Moye White LLP. All rights reserved. LESSON 6 Waivers 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).
Copyright © 2013 Moye White LLP. All rights reserved. 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
Copyright © 2013 Moye White LLP. All rights reserved. THANK YOU! James Rollin Miller, Esq. Eric B. Liebman, Esq. Burkeley N. Riggs, Esq. Attorneys, Moye White LLP and Gregory Ruegsegger, Esq. Vice-President & General Counsel, Furniture Row Companies
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