Taking or Defending Depositions of In-House Counsel: Strategic, Substantive, and Ethical Considerations
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, July 26, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will enlighten in-house counsel and their trial lawyers on issues that can potentially damage the corporation when in-house counsel is noticed or subpoenaed for a deposition. The panel will explore motions to quash or limit such examinations, permissible lines of inquiry during these depositions, issues related to preparing the witness, and pursuing privilege objections.
Ms. Pastor is Practice Group Leader of her firm's Insurance Coverage Group. She is an experienced trial attorney, who has secured hundreds of millions of dollars in insurance for corporate policyholders. She litigates complex coverage matters throughout the country and abroad, and provides insurance coverage advice to clients assessing their potential risks, analyzing new insurance products, and considering the adequacy of their programs. She publishes and lectures frequently on insurance, trial skills and ethics matters.
Mr. Gibson is an experienced trial lawyer, who has focused on high-stakes cases involving complicated technology and bet-the-company cases in the entertainment industry. He is the Chairman of the firm’s Patent Litigation Group and the publisher of the Patent Lawyer Blog. The media frequently calls upon Mr. Gibson to explain the significance of court decisions, and he has been quoted by the Wall Street Journal, Financial Times, Forbes, Bloomberg BusinessWeek, New York Times, Los Angeles Times, Thompson Reuters, American Lawyer, National Law Journal, ABA Journal, Los Angeles Daily Journal and other publications.
Mr. Gevertz is a trial lawyer. He tries employment discrimination, wage and hour, non-compete, whistleblowing, and trade secrets cases to juries throughout the country. In addition, Mr. Gevertz guides companies through sensitive internal and government investigations, employee thefts, and mass layoffs. He also represents entities accused of violating public accommodation laws.
Ms. Saiter's practice includes a wide range of complex commercial litigation with an emphasis in technology litigation, products liability defense, fiduciary duty litigation, probate and estate litigation, officer and director liability and legal malpractice defense. She has extensive experience representing individuals and companies in Austin’s technology and emerging growth markets. These cases typically involve claims of fraud, breach of licensing agreements, breach of non-disclosure agreements, misappropriation of trade secrets and violations of covenants not to compete. Ms. Saiter has also defended attorneys in cases arising from underlying patent infringement litigation, personal injury litigation, commercial litigation, airplane leases, probate and estate work, bridge loan financing and other transactional matters.
It's an in-house lawyer's worst nightmare. In the middle of monitoring an active transactional and litigation docket, a deposition notice arrives, specifically naming the in-house lawyer. Now what?
When in-house counsel is in the vortex of the facts and events causing the litigation or is the only or primary person with a thorough understanding of the underlying facts in a transaction gone awry, a deposition notice is far from out of the question. When, how, and through whom the "issue" in the underlying case found its way to the counsel's office can be vital information.
These depositions raise issues of attorney-client privilege. First, privileged communications must involve seeking or imparting legal advice. Given the evolving role of corporate counsel in business decisions, not every interaction involving counsel will meet this test.
Second, when an entity--not an individual--is the client, not every communication counsel has with employees will fall within the privilege. If an entity takes preventive steps to identify and protect privileged communications and minimize the number of non-privileged communications, the deposition can be far less frustrating for the in-house lawyer under oath and far less entertaining or rewarding for the party seeking testimony.
On the other side of the battle, trial counsel preparing to depose an in-house lawyer on the other side must strategically word questions to avoid expressly calling for privileged information. Both the questioning and defending lawyer, and the lawyer-witness, should be well versed in the law of privilege waiver. It's not just the "one question" that may be at stake.
Listen as our experienced panel discusses these issues and drills down to levels of detail that will provide the expertise necessary when encountering in-house counsel depositions.
- Application of Federal Rules of Civil Procedure to depositions of in-house counsel
- Key court decisions impacting depositions of in-house counsel
- Responding to deposition notices and subpoenas
- Protecting privileged information
- Ethical components of testifying
The panel will review these and other key issues:
- What guidance do the Federal Rules of Civil Procedure and relevant case law provide on the deposition of in-house counsel?
- How can in-house counsel prepare for a deposition sure to raise privilege, including the ethics of preparing to address those very issues?
- How can in-house counsel best distinguish between business and legal advice when responding to questions during depositions? To what extent can non-attorney-client privileged, but still confidential, business advice be protected?
- Well in advance of "deposition day," what practical tactics can aid in-house counsel in responding to deposition notices or subpoenas, particularly if the deposition notice accompanies a Rule 45 subpoena before any lawsuit is filed against the in-house counsel's client (and therefore, any external lawyer is engaged to defend a case)?
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