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.
Federal Rule of Evidence 502 authorizes parties to enter nonwaiver orders and nonwaiver agreements in an attempt to remedy inadvertent disclosures and avoid waiver of the attorney-client privilege or the work-product doctrine. (As an aside, Rule 502 waiver preventions apparently do not apply to other evidentiary privileges). Questions arise, however, whether Rule 502 protections comport with Model Rule 1.6’s duty of confidentiality, and whether utilizing Rule 502 protections may nevertheless lead to ethical violations.
Steven M. Puiszis’s excellent article, Reconciling Federal Rule of Evidence 502 with Model Rule 1.6, published in DRI’s reputable For the Defense journal, identifies the problems and offers sound solutions. The article, accessible here, explains how 502(d) nonwaiver orders and 502(e) nonwaiver agreements may help avoid pre-production privilege-review costs but at the same time breach the lawyer’s confidentiality duty. Mr. Puiszis’ correctly points out that Rule 502 has “not lived up to its promise” of reducing costs, and posits that the reason is concern that using 502 orders or agreements may result in an ethical violation:
While the entry of a Federal Rule of Evidence 502(d) nonwaiver order or a Federal Rule 502(e) nonwaiver agreement may allow an attorney to recover privileged or protected information produced in discovery, an unauthorized disclosure has nonetheless occurred. . . . Accordingly, a disciplinary tribunal could conclude that the mere entry of a nonwaiver order does not qualify as a reasonable attempt to prevent disclosure as required by Model Rule 1.6(c).
The article contains a thorough discussion of the “reasonable steps” required to protect against inadvertent disclosures and inadvertent release of confidential information and concludes with 7 meaningful practice tips. The article is a must-read for in-house and outside counsel. My thanks to Mr. Puiszis and DRI for permission to reprint the article in this post.
Corporate counsel’s internal investigations often reveal that a third-party consultant maintains relevant information. Yet, in-house and outside counsel have relatively little instruction on whether to interview these consultants and, if so, whether an Upjohn warning is necessary. Courts have recently addressed two related concepts, however, that provide excellent guidance on this front.
Courts, notably the 9th Circuit, have reiterated the importance of providing Upjohn warnings to corporate employees prior to conducting an interview. In United States v. Ruehle, 583 F.3d 600 (9th Cir. Cal. 2009), for example, the Ninth Circuit noted the “treacherous path” that counsel take when conducting internal investigations and called counsel’s lack of Upjohn warnings “troubling.” And relatedly, courts have increasingly held that the corporate attorney-client privilege covers consultants considered the “functional equivalent” of corporate employees. Together, these concepts provide corporate counsel informed guidance when interviewing consultants as part of an internal investigation.
In my recent article, Upjohn Warnings and External Consultants, published by InsideCounsel, I explore these concepts in greater detail. The article, accessible here, discusses the importance and preferred content of Upjohn warnings. It also discusses the “functional equivalent of employee” test, including how Model Rule 1.3 and its official comments dictate that corporate counsel provide Upjohn warnings to consultants meeting the test.
For further elaboration on the functional equivalent employee test, see my post discussing a recent ruling that a Google consultant was a “functional equivalent of an employee” for purposes of the attorney-client privilege coverage. You may also find helpful my recent post regarding the discoverability of witness statements, as these issues will apply to external consultants.
My thanks to InsideCounsel for permission to reprint my article in this post.