Taking or Defending Depositions of In-House Counsel: Strategic, Substantive, and Ethical Considerations

Description

It's an in-house lawyer's worst nightmare. In the middle of monitoring an active transactional and litigation docket, a deposition notice arrives, specifically naming the in-house lawyer. Now what?

When in-house counsel is in the vortex of the facts and events causing the litigation or is the only or primary person with a thorough understanding of the underlying facts in a transaction gone awry, a deposition notice is far from out of the question. When, how, and through whom the "issue" in the underlying case found its way to the counsel's office can be vital information.

These depositions raise issues of attorney-client privilege. First, privileged communications must involve seeking or imparting legal advice. Given the evolving role of corporate counsel in business decisions, not every interaction involving counsel will meet this test.

Second, when an entity--not an individual--is the client, not every communication counsel has with employees will fall within the privilege. If an entity takes preventive steps to identify and protect privileged communications and minimize the number of non-privileged communications, the deposition can be far less frustrating for the in-house lawyer under oath and far less entertaining or rewarding for the party seeking testimony.

On the other side of the battle, trial counsel preparing to depose an in-house lawyer on the other side must strategically word questions to avoid expressly calling for privileged information. Both the questioning and defending lawyer, and the lawyer-witness, should be well versed in the law of privilege waiver. It's not just the "one question" that may be at stake.

Listen as our experienced panel discusses these issues and drills down to levels of detail that will provide the expertise necessary when encountering in-house counsel depositions.