1. Avoiding Litigation Disasters that Threaten Your Business, Your Secrets, and Your Dignity

2. Introduction and Agenda
So You’ve Been Sued. Now What?
Attorney-Client Privilege
Don’t Destroy Evidence
Document and Hygiene

3. So you’ve been sued. Now what?
Attorney-Client Privilege
Don’t Destroy Evidence
Document and Hygiene

4. “Discovery” Your lawyer will collect your documents.
Company , computer files, shared files, file servers, paper documents … pretty much everything.
Every business communication (and a few personal ones) you ever thought was private gets collected.
If the other side wants it, they pretty much always get it.
There are exceptions, like attorney-client privilege (more on that soon)
Not an exception: the document is embarrassing

5. What Can You Do Before You’re Sued?
Protect the Attorney-Client Privilege
Don’t Destroy Evidence
Avoid Making a Bad Record

6. Attorney-Client Privilege
So You’ve Been Sued. Now What?
Attorney-Client Privilege
Don’t Destroy Evidence
Document and Hygiene

7. Attorney-Client Privilege: The Basics
What is “Privilege”?

8. Attorney-Client Privilege: The Basics
The attorney-client privilege applies to communications:
made between an attorney and her client (or potential client);
made in confidence (and kept confidential); and
made for the purpose of asking for or communicating legal advice.

9. Attorney-Client Privilege: The Basics
What is covered?
From Client
From Lawyer
Requests for legal advice
Legal advice
Information given to lawyer for purposes of generating legal advice
Requests for information necessary to generate legal advice

10. Attorney-Client Privilege: The Basics
Why does this matter to you?

11. Attorney-Client Privilege: The Basics
Myths:
Attorney-client privilege protects facts.
The company’s lawyer also represents individual employees.
Business advice from an attorney is privileged. x x x

12. Attorney-Client Privilege: The Basics
Communications between your company and a third party destroys privilege.
Inside your company, the more people involved, the easier to lose privilege.

13. How People Destroy Privilege: “Our Lawyers Told Us…”

14. How People Destroy Privilege: “Our Lawyers Told Us…”
Press Releases OK
Not OK
“We are confident that we will prevail and have asserted a number of strong defenses to this frivolous lawsuit.”
“Our lawyers told us that they found a document dated 2011 that proves that RoadRunner Inc. knew about our patent years ago and under the theory of laches, RRI cannot maintain its claim for damages for infringement by our Acme Anvil product. Further, in a deposition, RRI’s CEO said that he was aware of the patents and our lawyers told us this means we win because …”

15. How People Destroy Privilege: Looking for Advice in All the Wrong Places

16. How People Destroy Privilege: Over-Sharing
Client
Privilege Destroying Third-Party Rando
Client
Lawyer

17. How People Destroy Privilege: Playing Lawyer on Key Issues
Coyote Industries
Our Internal Analysis of Our Contract Obligations with Roadrunner
And Also Our Analysis of Roadrunner’s Patents by
Joe McNotaLawyer
Sr. VP of Not Lawyering
FOR EXTERNAL DISTRIBUTION!
[SERIOUSLY, SEND IT TO EVERYONE!]

18. Separate and Mark Requests for Legal Advice
Bad
Employee
Boss
Good
Employee
Boss

19. Preserving Evidence So You’ve Been Sued. Now What?
Attorney-Client Privilege
Don’t Destroy Evidence
Document and Hygiene

20. Don’t Destroy Evidence
American law allows each side to obtain a lot of information from its opponent.
First-timers are usually shocked.
Destroying potential evidence—even if by mistake—can have dire consequences.

21. Don’t Destroy Evidence
What? s
Hard Drives
Paper Files
Databases
Company Servers
Off-Site Storage
Backup Tapes
Metadata
Texts, IMs, Tweets
Social Media Sites
Cookies
Voic
Smartphones
Flash Drives

22. Don’t Destroy Evidence
When your lawyer sends you a “litigation hold” letter
an instruction to employees, directors, etc. to preserve and not to destroy or modify certain records relevant to a current or future litigation—
you really need to follow it.
Seriously.

23. Don’t Destroy Evidence
The obligation to save evidence begins right away
“Reasonable Anticipation of Litigation”
As soon as you
Receive a cease and desist letter
Receive a complaint
Receive a subpoena
Decide to sue

24. Document and Email Hygiene
So You’ve Been Sued. Now What?
Attorney-Client Privilege
Don’t Destroy Evidence.
Document and Hygiene

25. Too late to clean up ugly documents after litigation arises . . .
Relevant documents must be produced
It matters: Trials are about both emotional motivation to find in favor of a party and the facts and law of the case
Leaks and hacks—even without a lawsuit, damaging s still harm businesses

26. Emails about your competitors and customers will show up in court . . .
VP of Sales
CEO
[Expletive]
[Expletive]

27. [Painful Testimony Continues…]
. . . and it will get awkward
Q: Are there other ethnic or national groups that you don’t like? A: No. Q: Do you not like [national group] because you’re bigoted? A: No, I just don’t like competition. Q: You refer to your customers as “Free[jerks],” don’t you?
Q: Mr. CEO, what did you mean when you said “[expletive] the [national group]”? A: I don’t recall. Q: Were you suggesting a physical or sexual act against the [national group]? A: No. I think I was just suggesting that I did not particularly like them at the time.
[Painful Testimony Continues…]

28. Keep the jokes on a separate thread
VP of Product Development
CSO
[Completely unmentionable joke. Offensive to people and kittens everywhere.]

29. Think Before You Benchmark

30. Don’t Mix Business and Pleasure
FRED
WILMA
Euphemistic, but explicit, expression of physical desire for Fred]
[Additional words your lawyer cannot un-see.]
[Enthusiastic response to Wilma’s proposal. Additional explicit suggestions.]

31. Email and electronic communication
is forever.
If you would not want your message quoted in the WSJ or shown to a jury,
DON’T WRITE IT IN AN .*
*Or on Twitter (double plus true), Facebook (ditto), GChat, Snapchat, etc.

32. Avoiding Litigation Disasters that Threaten Your Business, Your Secrets, and Your Dignity