In-House Counsel Depositions: Navigating Complex Privilege Issues - PowerPoint PPT Presentation

In-House Counsel Depositions: Navigating Complex Privilege Issues Preserving the Attorney Client Privilege and Preserving the Attorney-Client Privilege and presents presents Maintaining Confidentiality A Live 90-Minute Teleconference/Webinar with Interactive Q&A Today's panel features: David R. Cohen, Partner, K&L Gates , Pittsburgh Kenneth E. McKay, Partner, Locke Lord Bissell & Liddell , Houston David W. Stark, Partner, Faegre & Benson , Denver Tuesday, February 23, 2010 The conference begins at: 1 pm Eastern p 12 pm Central 11 am Mountain 10 am Pacific You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrations. CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS. If no column is present: click Bookmarks or Pages on the left side of the window. If no icons are present: Click View , select Navigational Panels , and chose either Bookmarks or Pages . If you need assistance or to register for the audio portion, please call Strafford customer service at 800-926-7926 ext. 10

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I In-House Counsel Depositions H C l D iti Attorney-Client Privilege Attorney-Client Privilege Work Product Doctrine D David W. Stark id W St k Faegre & Benson LLP Denver, Colorado February 23, 2010

Attorney-Client Privilege y g www. www. faegre faegre faegre com faegre .com .com com • A communication • made between privileged persons p g p • in confidence co de ce • for the purpose of seeking obtaining or providing legal for the purpose of seeking, obtaining, or providing legal assistance • without waiving the protection. 2

Work Product Doctrine www. www. faegre faegre faegre com faegre .com .com com • Protects written materials • prepared by an attorney p p y y • in anticipation of litigation a c pa o o ga o • that reflect the attorney’s mental impressions conclusions that reflect the attorney s mental impressions, conclusions, opinions or legal theories. 3

The Purpose of the Privilege p g www. www. faegre faegre faegre com faegre .com .com com • To “encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and the administration of justice.” Upjohn v. United States , 499 U.S. administration of justice. Upjohn v. United States , 499 U.S. 383, 389 (1991). • The privilege “rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be ki t ti if th f i l i i i t b carried out.” Id. 4

The Federal Definition www. www. faegre faegre faegre com faegre .com .com com • The Federal Rules of Evidence • Rule 503(b) proposed in 1972 ( ) p p • Rule 501 u e 50 • The privilege applies only if: (United States v United Shoe The privilege applies only if: (United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass 1950)). • As defined in Wigmore’s Evidence: 5

State Definitions www. www. faegre faegre faegre com faegre .com .com com • Colorado • Minnesota • Minnesota • California 6

Elements of the Privilege g www. www. faegre faegre faegre com faegre .com .com com • A communication • made between privileged persons • in confidence • for the purpose of seeking, obtaining, or providing legal assistance to the client i t t th li t • without waiving the protection. See, e.g., Restatement, The Law Governing Lawyers §118 (Tentative Draft No. 1, 1988). 7

Communication www. www. faegre faegre faegre com faegre .com .com com • Any act by the client that is intended to be a communication to the attorney can create an attorney-client privilege. • Communication may be oral, written, or even wordless action. • It may further extend to demonstrations, experiments, and other actions other actions. 8

More on Communications www. www. faegre faegre faegre com faegre .com .com com • To and from an attorney • Intended to be confidential • Extends beyond death of client 9

Corporations p www. www. faegre faegre faegre com faegre .com .com com • Who is covered? • Control Group • Communications, not facts 10

Privileged Persons g www. www. faegre faegre faegre com faegre .com .com com • Clients • Client’s attorney on behalf of the client • Agents of the client or the attorney 11

Corporations p www. www. faegre faegre faegre com faegre .com .com com • Officers and directors • Have the power to assert and waive the privilege. • If replaced, they lose the ability to assert or waive it. • New management always – and old management never – has the right to assert privilege. g p g 12

Confidence www. www. faegre faegre faegre com faegre .com .com com • Client expects the attorney to keep the communication confidential and not reveal it to others. – See, e.g., Doe v. District of Columbia , 2005 U.S. Dist. LEXIS 8578 (D.D.C. May 11, 2005). 13

Legal Advice g www. www. faegre faegre faegre com faegre .com .com com • Must be made for the purpose of securing legal advice • Primary purpose or “but for” test 14

Without Waiver www. www. faegre faegre faegre com faegre .com .com com • Disclosure to a third party • Placing it in issue 15

Corporate Setting p g www. www. faegre faegre faegre com faegre .com .com com • Who is the client? • Dual privilege • Parent/Subsidiary • Limited waiver 16

Exceptions p www. www. faegre faegre faegre com faegre .com .com com • Joint defense • Common Interest • Crime-fraud C e aud 17

Work Product www. www. faegre faegre faegre com faegre .com .com com • Documents • Prepared for litigation or trial • Two kinds: 1 1. Fact Fact 2. Opinion 18

Overcoming the Protection g www. www. faegre faegre faegre com faegre .com .com com • Opinion – Near absolute protection • Fact – Substantial need – Undue hardship 19

Questions? Questions?

In-House Counsel Depositions: Navigating Complex Privilege Issues Navigating Complex Privilege Issues "Business vs Legal Advice" Business vs. Legal Advice Febr ar 23 2010 February 23, 2010 Ken McKay Litigation Partner Locke Lord Bissell & Liddell LLP 600 Travis, Suite 2800 Houston Texas Houston, Texas (713) 226-1127 Atlanta, Austin, Chicago, Dallas, Houston, London, Los Angeles, New Orleans, New York, Sacramento, San Francisco, Washington, DC

A Different Standard? A Different Standard? Courts have repeatedly held that there is no Courts have repeatedly held that there is no distinction between the standard to be applied for in-house and outside counsel for li d f i h d t id l f purposes of the attorney-client privilege. See Hertzog, Calamari & Gleason v. Prudential Ins ., 850 F. Supp. 255 (S.D.N.Y. 1994); S H C l i & Gl P d i l I 8 0 F S 2 (S D N Y 1 ) U.S. v. Mobil Corp ., 149 F.R.D. 533 (N.D. Tex. 1993) But there is a distinction, at least in application application. 2

Why is a different standard applied to in-house counsel? to in-house counsel? Principally because in-house counsel often perform non- legal business functions within their organizations and the law requires that privilege analysis distinguish the h l i h i il l i di i i h h two Having attorneys serve in dual capacities is the most frequently-cited factor as a basis for q y denying a claim of privilege. See Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1990); N.C. Elec. Membership Corp. v. Carolina Power & Light Co ., 110 F.R.D. 511, 517 (M.D.N.C. 1986) 3

Satisfying the “Attorney” Requirement of the Attorney-Client Privilege of the Attorney-Client Privilege General Rule: If an in-house counsel is acting in her capacity as an attorney, the attorney-client privilege applies. Where, however, counsel is acting as a business advisor or has only limited involvement , the privilege does not apply. "[T]he privilege is limited to confidential communications with an attorney acting in his professional legal capacity for the express purpose of securing legal advice As his professional legal capacity for the express purpose of securing legal advice. As a general rule, an attorney who serves a client in a business capacity may not assert the attorney-client privilege because of the lack of a confidential relationship. Thus, ordinary business advice is not protected." Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1990). See also N.C. Elec. Membership Corp. v. Carolina Power & Light Co ., 110 F.R.D. 511, 514 (M.D.N.C. 1986). 4

There is no Silver Bullet No single factor is No single factor is dispositive in every case case. See N.C. Elec. Membership Corp. v. Carolina Power & Light Co ., 110 F.R.D. 511, 516 (M.D.N.C. 1986) 5