News & Events

AGG Litigation Insights Newsletter - Fall 2015

Submitted By Firm: Arnall Golden Gregory LLP

Contact(s): Henry M. Perlowski, Teri A. Simmons

Author(s):

Henry R. Chalmers, David J. Marmins, Anuj Desai

Date Published: 10/6/2015

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Rule 30(b)(6) depositions can significantly shape the direction of your case and settlement prospects. So, when you receive a 30(b)(6) deposition notice, you need to be sure you properly select and prepare your representative witnesses for the ordeal they’re about to face. In this issue of Litigation Insights, we offer helpful tools you can use to maintain control of the process and ensure your witnesses are ready for the challenges that await them.

THE ART AND SCIENCE OF WINNING YOUR CASE

Proven Strategies For Handling Difficult Deposition Questions
By: Henry R. Chalmers and Rick R. Fuentes, Ph.D.

Witnesses often don’t know what to do when under attack in their depositions. They want to maintain control and “stay on message,” but aggressive questioning can cause them to stall or, worse, give up and agree with their interrogator’s inaccurate spin. The proven coping strategies in this article can help witnesses crystallize and convey their underlying messages, while reasserting control over the process. 
More >

“That’s [Not] Privileged”: A Corporation’s Duty to Prepare a 30(b)(6) Witness Includes Sharing Knowledge of Legal Counsel
By: Jennifer L. Shelfer

Facts are facts, whether known by a company’s employees or its outside counsel.  Many companies (and their counsel) believe that facts learned by a company’s counsel are privileged and fall outside the purview of a Rule 30(b)(6) deposition.  In reality, if a deposition notice identifies topics that encompass facts a company’s counsel uniquely learned from her own investigation, counsel has an affirmative duty to ensure that company witnesses are prepared to relay those facts in their Rule 30(b)(6) depositions. Accomplishing this while avoiding inadvertent disclosures of counsel’s mental impressions, opinions, and strategy requires careful planning. More >

Be Thoughtful In Your Rule 30(b)(6) Deposition Preparation to Avoid The Threat of Sanctions
By: Jennifer L. Shelfer

Presenting an inadequately prepared witness for a Rule 30(b)(6) deposition can have significant adverse consequences for a company, from monetary sanctions to adverse evidentiary findings. An essential step to avoid these pitfalls is to carefully evaluate the Rule 30(b)(6) notice and properly object in advance to any overbroad or unreasonable topics. More >

The Apex Doctrine: Protect Your Corporate Executives From Harassment
By: Richard A. Mitchell

Parties sometimes notice depositions of their adversaries’ key executives or “apex” officials less to discover admissible evidence and more to harass the company and exert settlement pressure. Such tactics are common enough that many courts have adopted the Apex Doctrine to protect executives from such unnecessary depositions. Counsel for an executive in these situations should be prepared to challenge the necessity of the deposition, and to force the deposing party to pursue alternative means of discovery to avoid undue hardship on the company and its executive. More >

Practical Considerations in Identifying and Preparing Your Rule 30(b)(6) Witnesses
By: Richard A. Mitchell

Given the importance of Rule 30(b)(6) depositions, identifying the “right” witnesses to testify on a company’s behalf is critical. Although employees with personal knowledge of the noticed subject areas may seem like the best choice, witnesses do not require first-hand knowledge of those areas. Careful thought should be given to who will present well and commit the time and attention necessary to ensure the company’s interests are best represented in the deposition. More >

AGG LITIGATORS IN THE TRENCHES

The Heritage Bank – Swift and Aggressive Discovery Strategy Secures Advantageous Settlement 

When a residential development stalled and the banking client’s borrowers defaulted, AGG attorneys David Marmins and Rebecca Lunceford took decisive action to sue on the debt and, at the same time, sue a guarantor that had fraudulently conveyed collateral property. A resolute discovery and summary judgment strategy led to a multi-million dollar settlement that included repayment of 100% of the debt, as well as attorneys' fees. More >

Privately-Owned Insurance Business – Smart Litigation Strategy Ends Anonymous Commercial Disparagement Campaign on Facebook

An unknown person accused a middle market insurance brokerage of being a “scam” on Facebook, and the disparagement was hurting the company’s industry reputation and efforts to expand. Anuj Desai and Drew Stevens acted swiftly to bring the page down by filing a "John Doe" lawsuit and uncovering the person’s identity through expedited discovery, which forced a settlement in favor of the company. More >

UPPI, LLC – AGG Facilitates FTC Action That Ends Illegal Monopoly in Health Services Sector 

When UPPI, a network of radiopharmacies, sought to challenge anti-competitive practices by industry giant Cardinal Health that blocked network members from competing in certain markets, Allen Hirsch and Matt Covell connected UPPI to the FTC. A multi-year investigation ended Cardinal’s illegal monopoly and resulted in the second largest monetary settlement ($26.8 million) ever obtained by the FTC in an antitrust case. More

Trustee Neil Gordon – Invoking Crime-Fraud Exception to Privilege Prompts Quick Settlement 

Acting on behalf of trustee Neil GordonSean Kulka began pursuing a fraudulent transfer case two years ago with a fascinating tale of deception that attempted to avoid $30 million in debt. After doggedly uncovering a trail of suspicious transfers and fabricated documents that implicated the debtor’s law firms, AGG obtained an evidentiary hearing for the production of several privileged documents under the crime-fraud exception, which led to a quick and favorable settlement. More >

LITIGATION TOOLKIT

It's Time to Get Comfortable With Deduplication
By: Scott A. Wandstrat

Attorneys who have mastered the e-discovery process know that deduplication of ESI is critical to prevent wasted time (and attorneys’ fees) spent reviewing multiple copies of a document. And, if done correctly, any anxiety about “missing” a relevant document can be addressed by following an industry-standard deduplication process that relies on a document’s “electronic fingerprint." More >

To Save Money Later, Take Steps Now to Prepare for E-Discovery 
By: Scott A. Wandstrat

A proven way to contain e-discovery costs is to prepare your organization for e-discovery before the threat of litigation ever arises. By proactively implementing a record retention policy, creating data maps, preparing a legal hold plan, and taking other important steps, your organization can avoid much of the e-discovery anxiety and inefficiency that often plagues complex litigation. More >

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Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel