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Litigation News quotes Ken Berman in “Court Puts In-House Counsel in Deposition Hot Seat”

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07.30.2015

Kenneth R. Berman, co-chair of the firm’s Business Litigation practice group, was quoted in the American Bar Association’s (ABA) Litigation News article “Court Puts In-House Counsel in Deposition Hot Seat” on July 30. The article discusses the ruling by the U.S. District Court for the Southern District of Texas in Sand Storage, LLC v. Trican Well Services, L.P., in which an in-house attorney who authored a breach of contract notice must submit to a deposition to identify the persons with knowledge of the alleged breach, subject to limitations to preserve privileges. The ruling emphasizes the crucial distinction between an in-house counsel’s role as a business adviser and legal adviser in maintaining attorney-client privilege.

“The facts of this case are unique. There seems to be some suggestion that Trican was less than forthright in identifying who had knowledge of the alleged breaches of contract” notes Ken, who also serves as co-chair of the ABA’s Section of Litigation. “Sand Storage made a sufficient showing that the information was relevant and could not be obtained from any other source. The court fashioned an order designed to protect the attorney-client privileged communications, and allow Sand Storage to get the information it needed without intruding upon the privilege,” he said.

Ken points out that the way to avoid your own attorney being deposed is to make sure there are means to obtain the information other than by deposing the attorney. “The analysis is really no different from a Rule 30(b)(6) analysis. It requires an honest assessment of whether the information sought by the opponent is relevant to the case, and if it is known by the attorney, the company should try to identify who else knows the information and could testify to it." He also observes that “It is sometimes ambiguous whether the inside counsel is wearing a business hat or a lawyer hat. It is a highly fact-dependent analysis and differs from case to case. When people in a company want to speak to their in-house counsel, they should make clear that they are looking for legal advice. If that is not clear, the attorney should ask the employee, ‘Are you consulting me for legal advice?’ If there are internal communications between an employee and an attorney, the communications should make clear that legal advice is being sought or given,” he said.

To view the article, click here.

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