In House Counsel Depositions: p Navigating Complex Legal and - PowerPoint PPT Presentation

Presenting a live 90 ‐ minute webinar with interactive Q&A In ‐ House Counsel Depositions: p Navigating Complex Legal and Ethical Issues Responding to Deposition Notices and Subpoenas and Protecting Privileged Information THURS DAY, JANUARY 17, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f David B. Fawcett, Partner, Reed Smith , Pittsburgh heldon, Partner, Reed Smith , Falls Church, Va. Matthew R. S The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

Tips for Optimal Quality S S ound Quality d Q lit If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory and you are listening via your computer speakers, you may listen via the phone: dial 1-866-328-9525 and enter your PIN when prompted Otherwise please send us a chat or e mail when prompted. Otherwise, please send us a chat or e-mail sound@ straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Qualit y To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again press the F11 key again.

Continuing Education Credits FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: • In the chat box, type (1) your company name and (2) the number of attendees at your location attendees at your location • Click the word balloon button to send

In-House Counsel Depositions: Navigating Complex Legal and Ethical Issues A Strafford Webinar Presented By: D David Fawcett, Reed Smith LLP id F tt R d S ith LLP Matt Sheldon, Reed Smith LLP January 17, 2013

Question: How often do you worry about being Question: How often do you worry about being deposed? A Once a day A. Once a day. B. Once a week. C. Once a month. D. Rarely. y E. Never. F F. So often it keeps me up at night. So often it keeps me up at night 5

Question: What is your confidence level with respect to Q ti Wh t i fid l l ith t t understanding the rules and strategies of being deposed? A. Very high. B. High. B. High. C. Moderate. D L D. Low. E. Very low. 6

Overview  General rules regarding depositions of in-  General rules regarding depositions of in house counsel.  Responding to deposition notices and  Responding to deposition notices and subpoenas.  In-house counsel depositions and privilege I h l d iti d i il issues.  Questions? Q ti ? 7

In-House Counsel Depositions  Basic Deposition Rules  Basic Deposition Rules  Preparing for the Deposition  Issues During the Deposition  Responding to the Deposition Notice or p g p Subpoena 8

Deposition Ground Rules  Preparing the witness is the key. p g y  Notice/subpoena must be proper.  Be cooperative but push back if necessary.  Familiarize yourself with local practice. 9

Preparing for the Deposition  What questions are likely to be asked?  What other areas of inquiry might the questioner delve into?  What are the areas where answers will be permitted?  What are the areas where an instruction not to answer will likely be given? 10

Issues Relating to Deposition Preparation  Document Review Review documents that refresh the witness’s recollection or that  the witness will likely rely on in her testimony.  Draw Clear Lines on Privilege/Work Product Draw Clear Lines on Privilege/Work Product  Waiving privilege as to particular documents or discussions may inadvertently waive the privilege on the subject matter generally.  Conversely making subjects off-limits in depositions can make Conversely, making subjects off limits in depositions can make them off-limits at trial (e.g. an advice of counsel defense).  Understand the Risks and Rules Going In   In-house counsel: discuss strategy in advance but remember that In-house counsel: discuss strategy in advance but remember that you are the witness and not the lawyer at the deposition! 11

During the deposition Instructions Not to Answer: Instructions Not to Answer:   May Be Risky.  May Be Necessary.  Be Prepared Going In, But Don’t Be Afraid to Confer on Privilege Issues During the Deposition.  Be Prepared to Seek Immediate Court Intervention.  In-house counsel:  Focus on Being the Witness − Not the Lawyer.  Understand What is at Issue Versus What is Privileged/Off- /Off Limits and Provide Outside Counsel the Factual Foundation to Object. 12

Hypothetical  During litigation opposing counsel serves  During litigation, opposing counsel serves interrogatories.  In house counsel verifies the interrogatory  In-house counsel verifies the interrogatory answers.  Can in-house counsel be questioned? C i h l b ti d? 13

Hypothetical 2  In house counsel verifies interrogatory  In-house counsel verifies interrogatory answers that inadvertently contain a factual mistake regarding the company’s principal g g p y p p place of business.  In-house counsel, in response to a motion to In house counsel, in response to a motion to dismiss, signs an affidavit stating that the interrogatory answer was incorrect and then provides an accurate statement of facts.  Can in-house counsel be questioned? q 14

Hypothetical 3  In house counsel authorizes the hiring of a  In-house counsel authorizes the hiring of a private investigator.  The PI improperly/unlawfully records phone  The PI improperly/unlawfully records phone conversations.  Can in-house counsel be questioned? C i h l b ti d? 15

Hypothetical 4  You are defending the deposition of in house  You are defending the deposition of in-house counsel. In response to a question that arguably seeks privileged information, in- g y p g , house counsel says “I need to confer with my counsel before answering that question.” Opposing counsel objects and demands an answer to the question.  What do you do? 16

Responding to the Deposition Notice g or Subpoena  Is the noticed deponent aware of facts that are legitimate subjects of discovery? legitimate subjects of discovery?  Has the company put the advice of counsel at issue? Has counsel been noticed to harass or for other  improper purposes? improper purposes? Is the notice procedurally proper?   Does the notice satisfy rule requirements?   Was service proper? Was service proper?  If the corporation is not a party:  Does a subpoena accompany the notice?   Does the issuing court have jurisdiction? Does the issuing court have jurisdiction?  Did the serving party obtain the proper commissions? 17

Challenging a Deposition Notice/Subpoena  Challenging a deposition notice/subpoena may be the best alternative if: t e best a te at e  Defect in notice/subpoena is clear.  Noticed party has no non-privileged information.   The serving party is being unreasonable The serving party is being unreasonable.  The serving party’s motives are questionable.  You can obtain leverage re: scope, length of deposition.  You can afford the expense of challenging.  Options for challenging include:   Negotiating with opposing counsel. Negotiating with opposing counsel  Moving for a protective order. Serving objections and then forcing a motion to  compel.  Note: Failing to file or serve a written response can be risky. 18

But Compliance May Be the Best Option If . . . The requested discovery is legitimate. The requested discovery is legitimate.   You want to use counsel as a witness.  Any defect is debatable or just technical in nature.  Supplying a deponent is the best way of creating a record that there is no legitimately discoverable information.   You want to avoid incurring fees associated with a challenge You want to avoid incurring fees associated with a challenge. Your opponent will agree to limits or restrictions as favorable  as the court or discovery master will likely grant. 19

Hypothetical  Opposing counsel has been difficult to deal with. During discovery, he notices pp g g y the deposition of your client’s General Counsel, who has had very little involvement in the case. Opposing counsel never conferred with you prior to noticing the deposition and the deposition is scheduled at a time and place extremely inconvenient for you and the witness. y y  What do you do? A. Serve objections and wait to see what happens. B. Immediately file a motion for a protective order. C. Call opposing counsel and tell him he’s a jerk. D. Comply with the notice so as not to cause a stir. 20