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.

Practical Tip No. 2:  In some instances, in-house counsel will be deposed regardless of any precautions taken, particularly if in-house counsel has played a significant role in the investigation and decision-making process in an employment matter.  In these situations, in-house counsel will want to try to avoid having to produce potentially sensitive investigation materials that could be privileged.  For example, in-house counsel should tread carefully when taking notes during investigations.  Wearing the shoes of a “fact-gatherer” means that notes taken by in-house counsel may be discoverable if a court believes that such notes are not privileged.  To maximize the protection of the attorney-client privilege and to prevent in-house counsel’s hard work from getting into the wrong hands, in-house attorneys should, in the course of conducting their investigations, prepare interview memoranda.  On each interview memorandum, in-house counsel should include a statement limiting circulation of the memorandum to only those who are on a “need-to-know” basis.  In-house counsel should also mark the memorandum as privileged and expressly define the purpose of the investigation both in the memorandum and orally to the witnesses being interviewed (i.e., gathering information for the purpose of providing legal advice).  Most importantly, in-house counsel should make sure to include their mental impressions in the memorandum.  This means everything from opinions about the witness and the witness’s credibility to strategy regarding next steps in light of information obtained from the witness.  However, to the extent practicable, in-house counsel should attempt to segregate their mental impressions and conclusions from any factual recitations so those portions of the memorandum that contain counsel’s opinions can be redacted in the event a court orders the memorandum to be produced.

Reed Smith’s Labor & Employment Group will be conducting a series of CLE Programs entitled “Employment Law 2013 – Reed Smith Boot Camp” in locations across the country. Kicking off “Boot Camp” will be an event in our Philadelphia Office on January 31, 2013. If you would like to attend, click here and indicate your location.