Taking and Defending Depositions of In-House Counsel: Strategic, Substantive and Ethical Considerations

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, August 22, 2019

Recorded event now available

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Program Materials

This CLE webinar will enlighten in-house counsel and their trial lawyers to 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.

Description

It’s among an in-house lawyer’s worst nightmare. In the middle of monitoring an active transactional and litigation docket a deposition notice arrives – and it specifically names the in-house lawyer. Now what?

This is not just a nightmare. When in-house counsel is at 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 counsel's office can be vital information.

These depositions raise issues of attorney-client privilege. First, to be privileged, the communication 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 to 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.

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Outline

  1. Application of Federal Rules of Civil Procedure to depositions of in-house counsel
  2. Key court decisions impacting depositions of in-house counsel
  3. Responding to deposition notices and subpoenas
  4. Protecting privileged information
  5. Ethical components of testifying

Benefits

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 advice 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 useful 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)?

Faculty

Baltz, Kevin
Kevin C. Baltz

Atty
Butler Snow

Mr. Baltz has extensive experience counseling clients through complex civil litigation in state and federal courts. He...  |  Read More

Hanthorn, Gregory
Greg Hanthorn

Of Counsel
Jones Day

For more than 30 years, Mr. Hanthorn has successfully tried disputes ranging from multimonth jury and bench trials to...  |  Read More

Watts, Robert
Robert A. (Bob) Watts

Atty
Jones Day

Mr. Watts focuses his practice on complex commercial litigation in state and federal courts. His practice also includes...  |  Read More

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