In-House Counsel: How To Avoid Being Deposed, Part 2

This post was written by Matthew R. Sheldon and Julia Y. Trankiem.

Have you ever thought that being an in-house attorney will insulate you from being deposed as a witness??  Not so fast!  The role of in-house counsel in the employment context has expanded, the legal landscape is changing, and, now more than ever, in-house attorneys are being deposed as fact witnesses.  The increase in deposing in-house counsel stems, in part, from a failure to take the proper precautions to avoid being deposed.  In-house counsel's participation in internal investigations, layoffs, and discipline and termination decisions increases the risk of being deposed.  But there are ways to minimize that risk, particularly by recognizing the different roles of in-house counsel and how acting in a business capacity can jeopardize claims of privilege protection.  This is the second in a series of employment law blogs wherein Reed Smith will offer practical tips on how in-house counsel can avoid being deposed.  To see Practical Tip No. 1, click here.

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Pennsylvania Federal Court Undercuts Attorney-Client Privilege To Force Disclosure of Information from Internal Company Investigation

This post was written by Kyle Bahr and Efrem Grail.

A recent Third Circuit opinion undercuts the attorney-client privilege, especially in federal Grand Jury investigations of companies and individuals. Under the new precedent, there is no way to immediately challenge a court order invading the protections of the attorney-client privilege without first suffering a judicial contempt citation, thereby risking monetary fines and imprisonment. In this article, Reed Smith attorneys Kyle Bahr and Efrem Grail highlight the difficult choices faced by clients in protecting their privileged materials from discovery by the Government in federal criminal investigations.

Read the full article here.

Attorney-Client Privilege and Employees' Personal Use of Employer Hardware or Software in the United States

This post was written by Lisa M. Carvalho, Lucas Liben and George M. Linge.

This may be one of the abiding truths of the 21st Century: the pervasiveness of modern communication technology has revolutionized how business is conducted, law is practiced, and life is lived. Nevertheless, courts remain protective of communications between an attorney and his or her client almost without regard to the form that communication takes.

Since the middle of the past decade, courts have faced the question of whether the attorney-client privilege can be abrogated when an employee uses employer-provided communication technology to email the employee’s personal attorney. Courts examine a variety of factors to answer this question, including:

  • Whether the employee was operating an employer-owned computer or his or her own
  • Where the computer was located
  • Whether the email was transmitted through a company account or a personal account such as Gmail, Yahoo or Hotmail
  • Whether the employee’s personal email account was password-protected. Perhaps most importantly, courts look to the language of the employer’s policy on email usage, particularly the policy’s stance on personal use, monitoring of email accounts and web activity, and retrieval of information.

Employers must decide whether the advantage of possibly accessing communications between a former employee and his or her counsel outweighs the disadvantages associated with the kind of communications policy necessary to abrogate attorney-client privilege. On the one hand, an employer's interests in information security and full control of its systems mitigates in favor of its having fully transparent access to its employees' electronic communications on the employer's systems, and would have the incidental benefit of possible access to employee communications that are against the employer's interest. On the other hand, an employer may wish, in some limited fashion, to be sensitive to its employees' privacy rights in the context of today's mobile workforce, and may choose not to exert an aggressive information security policy that would go so far as to permit the invasion of the attorney-client privilege.

To read more about the recent rulings and the two-part rule that seems to be emerging, please click here.

California Supreme Court Upholds Sanctity of Attorney-Client Communications About Wage and Hour Issues

As employers seek to avoid substantial exposure for alleged violations of wage and hour laws, including the continuing flood of class actions, many are asking outside counsel to review or audit their pay practices so that any problems can be fixed to minimize such risks. In a welcome development, the California Supreme Court recently rejected an effort to force an employer to disclose the results of such a review to managers who had sued, affirming that such advice is protected by the attorney-client privilege.

For more information on this recent ruling, please see the following client alert.