How to Prepare for and Handle

Litigation Matters

ACC SoCal

November 13, 2019

Michael J. Duvall, Esq.

Kelly R. Graf, Esq.

2

Preparing for Litigation

November 13, 2019

3

•Hats

•Legal Advice

•Cross-border

•Parents and Subs

Privilege

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•Training

•Forwards

• “Privileged and Confidential” or “Attorney-Client

Privileged”

Privilege (Cont’d)

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•Anticipation of Litigation

Work Product

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•Data breach

Insurance Coverage

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•Do you have one?

Document and Data Retention Policies

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•Repository

Contracts

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•Handbooks

•Acknowledgments

•Agreements

•Confidentiality

Employees

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•Consumers

•Employees

•Click-throughs

Individual Arbitration Agreements

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•What do you do?

Risk and Gaps Assessments

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•Websites

•CCPA

•Prop. 65

•FDCPA

•TCPA

Low-Hanging Fruit

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Handling Litigation

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What is “Litigation”?

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•Harassment

•Discrimination

•Health and Safety

•Theft

•Fraud

Internal Complaints

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• Internal Investigations

• HR

• You

• Outside Counsel

• Confidentiality

• Privilege

• Reporting

Internal Complaints (Cont’d)

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Cease and Desists

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•Consumer class actions

•Employee/former employee

Pre-Suit Demand Letters

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•Do respond

•Don’t ignore

Pre-Suit Demand Letters (Cont’d)

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•Litigation holds

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Pre-Suit Demand Letters (Cont’d)

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Civil Complaints

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You’re in Litigation: Immediate Action

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•When

•To Whom

•Content

•Reminders

•Updates

•Automation

Litigation/Legal Hold Notices

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•Who is your client?

•Employees

•Upjohn warnings

Preserving Privilege

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•Legal advice

•Forwarding

• “Privileged and Confidential” or “Attorney-Client

Privileged”

Preserving Privilege (Cont’d)

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•Trade secrets

• IP

•Sensitive matters

•Already violated?

Confidentiality

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Notifications

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•Periodic

Insurance Tenders

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Indemnification

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•Law Enforcement

•Regulators

Who Else Needs to Know?

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•Reporting

•Reserves

Public Companies

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•Who really needs to know

•Regular reports & meetings

•Boards

Internal Communication

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• Industry

•Legal

•Social media

Publicity

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•Advance draft press release

•FAQs/scripts

•Privilege

Publicity (Cont’d): Plan Ahead

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•Timing

•Process

•Variables

•Costs

•Distraction

Managing Expectations

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•Goals

•Definitions of “Success”

Managing Expectations (Cont’d)

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•Outside counsel - objective

•Source materials

•Judge

•Exposure analysis

Early Case Assessments

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•Necessary?

•Employees

•Recommendations

•RFPs

•Vetting

•Budgets

Outside Counsel

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•Hourly

•AFAs

•Refreshing

Budgets

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Evaluate Remediation

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•Employees most knowledgeable

•Best witnesses

•Former employees

•Consultants

•Deponents

Litigating: Key Players

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• IT/e-discovery

•Hot documents

Litigating: Documents and Data

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•Forum

•Arbitration

•Transfer

•Removal

•Counterclaims

•170.6

Immediate Litigation Decisions

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•What’s the point?

•Pleadings

•Motions

•Discovery

Litigation Events

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•Fact-gathering

•Witness Prep

•Depositions

•Hearings

Litigation and In-House Counsel:

You’re Not a Potted Plant

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•Joint Defense Groups

•Common Interest Doctrine

• Information Sharing

•Cost sharing

Safety in Numbers?

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•When

•Where

•How

•Why

Settlement and ADR

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•Winning

•Resolving

•Precedent

•Reputation

Success

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Reassess

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Remediation & Follow-Through

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•Lessons Learned

Prevention

November 13, 2019

Dentons US Presence

November 13, 2019

Thank you

Dentons US LLP

601 S. Figueroa Street

Suite 2500

Los Angeles, CA 90017-5704

United States

Dentons is the world’s largest law firm, delivering quality and value to clients around the globe. Dentons is

a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by

prominent business and legal publications for its innovations in client service, including founding Nextlaw

Labs and the Nextlaw Global Referral Network. Dentons’ polycentric approach and world-class talent

challenge the status quo to advance client interests in the communities in which we live and work.

www.dentons.com.

© 2017 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices.

11/12/2019

Kelly R. GrafLos Angeles

D: +1 213 892 2811

kelly.graf@dentons.com

Michael DuvallLos Angeles

D: +1 213 892 2818

michael.duvall@dentons.com