litigation 101 - dapl
TRANSCRIPT
LITIGATION 101
AGENDA
• Background
• Litigation Stages
o Pleadings*
o Investigation*
o Discovery*
o Pre-Trial
o Settlement
o Trial
o Appeal
• Why is This Important?
WHAT LITIGATION IS NOT
WHAT LITIGATION IS
BACKGROUND
• Criminal vs. Civil
o Criminal – offense to public, society or state
Deters or punishes wrongdoing
o Civil – dispute between individuals or private parties
Compensates victims of wrongdoing
• Parties
o Plaintiff – party who brings lawsuit
o Defendant – party defending against claims
• Jurisdiction – authority to hear case
o Court vs. Arbitration
o Federal vs. State
BACKGROUND CONT.
• Jurisdiction cont.
o Federal vs. State
Federal – limited jurisdiction
• Constitutional questions
• Question of federal law or treaties
• United States is a party
• Parties from different states and amount in controversy is
> $75,000
State – broad jurisdiction
• Cannot hear cases against US or those involving certain laws
• Burden of Proof
o Plaintiff has burden
o Preponderance of the evidence – more likely than not
BACKGROUND CONT.
• Alternative Dispute Resolution (ADR)
o Mediation
Neutral third party trying to help parties come to mutually agreeable solution
No fact finder
Court-ordered
Voluntary
o Arbitration
Neutral arbitrator or panel of arbitrators act as fact finders and issue decision
Requires mutual agreement or contractual provision
Binding
Pros
Cons
PLEADINGS• Complaint
o Facts and legal theory for imposing liability
o Injury plaintiff allegedly suffered
o Legal relief sought
• Answer
o Admit, deny or qualify allegations
o Assert legal defenses
o Assert counterclaims if appropriate
• Motion to Dismiss
o Failure to state a claim, improper party, etc.
HOW DOES THIS AFFECT ME?
• Duty to Preserve Relevant Information
o Arises when reasonable anticipation of litigation
o Parties are required to take reasonable steps under the circumstances
o Penalties for failure to comply
HOW DOES THIS AFFECT ME?
• Fed. R. Civ P.37(e) - FAILURE TO PRESERVE ELECTRONICALLY STORED
INFORMATION. If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is lost because a party
failed to take reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another
party of the information’s use in the litigation may:
• presume that the lost information was unfavorable to the party;
• instruct the jury that it may or must presume the information was
unfavorable to the party;
• dismiss the action or enter a default judgment.
HOW DOES THIS AFFECT ME?
• Non-Intentional Spoliation – Examples of
Sanctions
o Certain related evidence excluded
o Parties allowed introduce evidence or make
arguments to jury about ESI loss
o Spoliating party required to pay opposing party’s
associated costs
• Intentional Spoliation – Examples of Sanctions
o Fact-finder presumes evidence unfavorable
o Adverse inference
o Case-termination
o Lesser sanctions – appropriate when:
Lost ESI relatively unimportant
Lesser measures sufficient to redress loss
HOW DOES THIS AFFECT ME?
HOW DOES THIS AFFECT ME?
• Litigation Hold/Preservation Notice
• Email notification to preserve any electronic or hard copy items relating
to lawsuit
• Custodian Questionnaire
o Identify location of relevant documents and information
• Custodian Interview
o Detailed discussion with member of legal team about location of
information
INVESTIGATION
• Plaintiff
o Determine if enough evidence exists to bring suit
o Prior to filing complaint
• Defendant
o Determine what evidence exists to defend against suit
o Often after receiving Complaint
• Investigate facts leading to dispute
o Interview employee witnesses
o Gather relevant materials
o Locate third-party witnesses
o Take third-party witness statements
o Visit scene
HOW DOES THIS AFFECT
ME?
• Interview employee witnesses
o Need to know all helpful and harmful facts
• Gather relevant materials
o Provide access to hard copy materials
o Provide access to electronically stored
information
o Provide access to smartphone
DISCOVERY
• Obtain information from other side or 3rd parties to support case
o Interrogatories
Written questions and answers
o Requests for Production
Production of documents and tangible items
o Requests for Admissions
Admit or deny statements
o Depositions
Witnesses questioned live under oath
o Third-Party Subpoenas
Seek production or inspection of documents or other tangible items from party
not involved in lawsuit
HOW DOES THIS AFFECT ME?
• What gets produced in discovery?
o Previously, any information “reasonably calculated to lead
to the discovery of admissible evidence.” Former Fed. R. Civ.
P. 26(b)(1) – Discovery Scope and Limits, Scope in General
o Revised December 1, 2015
New Fed. R. Civ. P. 26(b)(1) contains “proportionality test”
Party may obtain information that is non-privileged, relevant
and “proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.”
o Under both versions, information need not be admissible to be
discoverable
HOW DOES THIS AFFECT ME?
• From a practical standpoint, what gets produced in discovery?
o Hard copy documents – includes hand-written notes
o Electronic documents – includes emails, status reports, lease reports, well
files, contract summaries, PowerPoints, spreadsheets, etc.
o Voicemails
o Text messages
o Skype chats
o Databases
o Pictures
HOW DOES THIS AFFECT ME?
• Email Challenges
o Volume
o Informality
o Lack of tone and context
o Otherwise harmless communications can be misinterpreted or spun by an
opponent during lawsuit
• Email Tips
o ALWAYS BE PROFESSIONAL
o All documents or communications can become evidence
o Compose message as if co-workers, supervisor, and external parties reading
HOW DOES THIS AFFECT ME?
• Email Tips cont.
o Stick to what you know
o Do not guess about facts
o Be careful of exaggeration, hyperbole and jokes
o Always double-check that email is being sent to intended recipients
o When attaching files to an email, ensure that the appropriate document has
been attached
o Re-read each email before you hit "send"
• It shall be the duty of the Land Professional at all times to
promote and, in a fair and honest manner, represent the
industry to the public at large with the view of establishing
and maintaining goodwill between the industry and the
public and among industry parties.AAPL CODE OF ETHICS
ARTICLE XVI, SECTION 1
“DO NOT” EMAIL EXAMPLES
EMAIL EXAMPLES CONT.
EMAIL EXAMPLES CONT.
HOW DOES THIS AFFECT ME?
• What does not get produced in discovery?
o Non-relevant materials (admissibility is not a factor)
o Materials subject to objections
Disproportionate, not reasonably related to any claim or defense, etc.
o Privileged materials
Attorney-Client Privilege
Applies to communications between attorney and client for purpose of seeking legal
advice
Attorney must be acting in capacity of lawyer rather than business advisor or friend
Client needs to intend for communication to be in confidence
Restatement (Third) of Law Governing Lawyers § 68; Upjohn Co. v. United States, 449
U.S. 383 (1981) (confirming attorney-client privilege applies to corporations)
HOW DOES THIS AFFECT ME?
• What does not get produced in discovery?
o Privileged materials cont.
Attorney Work Product Doctrine Hickman v. Taylor, 329 U.S. 495 (1947)
o Protects materials prepared in anticipation of litigation from disclosure
o Applies whether prepared by attorney or non-attorneys so long as litigation was
motivation
o Generally at direction of attorney
o Rebuttable presumption – substantial need and undue hardship Fed R. Civ. P. 26(b)(3)
HOW DOES THIS AFFECT ME?
• What does not get produced in discovery?
o Privileged materials cont.
Simply labeling email “Privileged” does not make it so!
Copying attorney on business email that does not seek legal advice does not
make it privileged
Seeking legal advice at top of email chain does not make the bottom of the
email chain privileged
Waiver
o Disclose information to third party
o Circulate beyond “need to know” group
PRE-TRIAL
• Motion for Summary Judgment
o No material facts at issue
o Appropriate for judge to make ruling on law
• Prepare Case for Trial
o Develop Strategy/Theme
o Prep Witnesses
o Prep Experts
o Prepare Exhibits, Witness Lists
o Mock Trial
• Motions in Limine
o Seek to limit or prevent certain evidence from being admitted at trial
SETTLEMENT
• When
o Any time before or during litigation process
o But often leading up to trial
• How
o Mediation, informal negotiations, etc.
• Why
o Merits of case
o Litigation Risk
Judge
Jury
Witnesses
SETTLEMENT CONT.
• Why cont.
o Costs
o Opportunity Costs/Time
o Reputation
o Relationships
o Subsequent Impact
TRIAL• Bench Trial vs. Jury Trial
• Selecting a Jury
o Peremptory challenges
o Challenges “for cause”
• Opening Statements
• Witness Testimony and Cross-Examination
• Closing Arguments
• Jury Instructions
• Jury Deliberation and Verdict
APPEAL
• Party may challenge ruling to higher court if not satisfied with result
• Basis for appeal
o Errors in trial procedure
o Errors in judge’s interpretation of law
• No new facts on appeal
• Options for appellate court
o Affirm judgment
o Refuse to hear appeal
o Reverse
o Vacate and remand
HOW DOES THIS AFFECT
ME?
• Litigation Hold Release
o Duty to preserve ends following final resolution of
case
Settlement – settlement agreement executed and court
dismisses matter
Trial – time for filing an appeal has run
o Notification that materials being preserved can now
be destroyed subject to your company’s document
retention policies/schedule
o Litigation Hold Release for one matter does not
relieve duty to hold materials relevant to separate
litigation
WHY IS THIS IMPORTANT?
• Your Company
o Reputational Impact
o Financial Impact
Fees
Judgment
• Individually
o Day-to-day Impact
Gathering information
Deposition
Trial witness