In-house and outside counsel should never underestimate the importance of selecting and preparing the appropriate representative(s) for a Federal Rule 30(b)(6) (or state-law equivalent) deposition. The requirements placed on the chosen representative–as well as in-house and outside counsel–invoke rigorous preparation, which includes a thorough understanding the corporate attorney-client privilege.
In my article, Selection and Preparation of Corporate Representatives for 30(b)(6) Depositions, published by InsideCounsel, I breakdown Rule 30(b)(6)’s requirements. I also outline the duties and responsibilities that the rule imposes on corporate parties (and, thus, their lawyers), and expose some of the myths developed over time. The article, accessible here, also discusses qualities and characteristics that counsel should consider when selecting corporate representatives.
The article also emphasizes the importance of thorough preparation, and how that preparation must include educating the representative as to the corporate attorney-client privilege. My thanks to InsideCounsel for publishing the article and permitting its reprint in this post.
A critical part of an attorney-led investigation involves interviewing witnesses, whether corporate-employee witnesses, outside consultants, or independent, third-party witnesses. Corporate counsel must determine whether to document the witness’s interview and, if so, whether by summary memorandum, audio- or video-recording, signed witness statements, or otherwise. The questions become whether documented witness statements are discoverable and how in-house and outside corporate counsel should handle these statements to maximize the potential for protection.
Several issues arise in answering these questions. While the corporate attorney-client privilege may (depending on your jurisdiction) protect counsel’s employee-interview notes, does it also protect a signed an employee’s signed statement? The work-product doctrine, which is a preclusion doctrine rather than an evidentiary privilege, may protect a lawyer’s summary memoranda of witness interviews, but the protection is not absolute and may give way upon a sufficient showing of need. And federal and state civil procedure rules may differ, causing a witness statement to be discoverable in a state forum even if not in a federal forum.
In my article, Protecting Witness Statements from Discovery, recently published by InsideCounsel, I explore all these issues. The article, accessible here, distinguishes the too-often-conflated work-product doctrine and the attorney-client privilege. It also outlines legal arguments for protecting witness statements of corporate employees and independent witnesses, and concludes with a set of practice tips for in-house or outside counsel when dealing with witness interviews. My thanks to InsideCounsel for permission to repost my article in this blog.