As in-house counsel or outside corporate counsel, how would you handle this situation? Two employees download your corporate client’s proprietary information about Product X, join a competitor, and—surprise—a similar Product X from the competitor hits the market just a few months later.
Your client conducts a forensic investigation and discovers irrefutable evidence of the employees’ theft. Sure, you may file a civil action for trade-secrets misappropriation, but your client wants the employees criminally prosecuted.
Should you disclose the investigator’s report to the U.S. Attorney’s Office to aid the prosecution? Would that limited disclosure result in privilege waiver in the parallel civil case? Isn’t there some type of privilege-sharing doctrine, such as a so-called joint–prosecution privilege, or even the common–interest doctrine that would prevent privilege waiver? More…
In a FCRA putative class action, a Washington federal court quashed a deposition notice for a defendant–company’s litigation support specialist based in the legal department. The court treated her as the General Counsel’s agent for privilege purposes, and used the Shelton doctrine to preclude her deposition testimony. Broyles v. Convergent Outsourcing, Inc., 2017 WL 2256773 (W.D. Wash. May 23, 2017). You may read the decision here.
What is a Litigation Support Specialist?
I suppose the duties of a Litigation Support Specialist vary from company to company, but likely include general paralegal duties and/or e-discovery duties. In Broyles, Alisia Stephens worked as a Litigation Support Specialist for Convergent Outsourcing, a collection agency, under the direction of Convergent’s General Counsel. Her duties included reviewing complaints, investigating the complaint’s allegations, and engaging in settlement-related communications with plaintiffs’ counsel before retaining outside counsel.
After Plaintiff Broyles filed her complaint, Stephens communicated with Broyles’ counsel regarding a potential settlement. She also submitted a sworn declaration discussing Broyles’ prior bankruptcy filings and stating, simply, that Convergent’s collection inquiries “were permissible under the FCRA.” Ok, if you say so.
The Deposition More…
In an employment-discrimination case, the SDNY ruled that the attorney–client privilege precluded depositions of a company’s Termination Review Committee members, which included an in-house lawyer. The privilege applied even though the Committee included two non-lawyers. Fletcher v. ABM Building Value, 2017 WL 1536059 (SDNY Apr. 18, 2017). You may read the decision here.
ABM Building Value maintains a committee—ominously named the “Termination Review Committee”—that evaluates managers’ employee-termination decisions before the company carries out a termination. Following its review, the TRC, composed of one in-house lawyer and two non-lawyers, provides the company with advice concerning any risks associated with the termination. More…