Legal, ethical, and strategic issues to consider when utilizing a former employee as a non-party witness in employment litigation.
In any employment litigation, the presence of material witnesses who are former employees of the employer can implicate a myriad of legal, ethical and strategic issues. This topic will teach you to learn how to navigate the aforementioned issues, as well as the particular risks that are inherent in those issues, and surveys the relevant legal authorities and strategic advice that pertain to each of the issues and risks. This topic is intended to provide you with information on keeping your company safe when using former employees and executives as non-party witnesses in employment litigation.
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Agenda
Need for HR to Make Sure That [Where Applicable] the Attorney-Client Privilege Will Be Preserved for Communications Between Employer Counsel and Former Employees
- General Rule Provides That the Privilege Covers Communications With Former Employees About Knowledge Obtained by Former Employee While Still Employed With the Company
- Privilege Might Extend to Communications by HR With Former Employees Where Communications Are Under the Direction and or Supervision of Counsel
Responding to Ex Parte Contacts by Plaintiff's Counsel With Former Employees
- Majority Rule Allows Such Contact With Unrepresented Former Employees
- Plaintiffs Cannot Poach on Privileged Communications
- Plaintiff's Counsel Barred From Ex Parte With Former Employee Who Is Represented
Compensating Former Employee for Value of Time Spent Preparing for and Testifying (as Lay Witness) in Deposition and Trial
- Majority Rule Allows Reasonable Compensation for Value of Time Spent
- Critical That Compensation Be Reasonable and Noncontingent
- Risks If Compensation Excessive or Linked to Testimony
- Consulting Arrangements
- Consider Whether Former Employee Will Show up for Trial
Strategic Considerations for Approaching and Dealing With Former Employees as Witnesses
- Proper Background Investigation and Introduction Re Witness
- Interview With Former Employee
- Do Not Assume Witness Will Honor Obligations to Maintain Confidentiality
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Credits
OnDemand Course
This course was last revised on May 25, 2016.
Call 1-866-352-9540 for further credit information.
This program does NOT qualify, nor meet the National Standard for NASBA accreditation.
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Why Lorman?
Over 37 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.
Faculty
Wayne A. Schrader
IslerDare, P.C.
- Joined IslerDare, P.C. as a partner in April 2012
- Prior to 2012, he served with Gibson, Dunn & Crutcher from 1976 through March 2012; he held the position of partner with Gibson Dunn from 1983 until his departure in 2012
- Has tried jury and non-jury cases in several different courts throughout the country including the Southern District of New York, Eastern District of Virginia, District of Columbia, Northern District of Ohio, District of Maryland, District of Oregon, Central District of California, and the District of Connecticut and various state courts; has also tried administrative proceedings before federal administrative law judges and he has also handled numerous private arbitration proceedings
- An experienced trial attorney as well as an experienced appellate counsel and has handled appeals before the United States Courts of Appeal for the Second, Fourth, Fifth, Sixth, Ninth, and District of Columbia Circuits
- Has defended numerous employment and consumer class action cases; has considerable experience with the trial and handling of various employment-related claims including wage and hour, hostile environment, wrongful termination, retaliation, race, age and sex discrimination and ERISA claims
- Managed corporate internal investigations where the client has been the audit committee or a special committee of the board of directors of publicly traded companies; has also represented CEO's and other officers of publicly traded companies in connection with investigations and litigation brought by the SEC and the DOJ regarding accounting practices or disclosures by public companies
- Member of the bars of California, Virginia and the District of Columbia; admitted to practice before the First, Second, Fourth, Fifth, Sixth, Ninth, and District of Columbia Circuit Courts of Appeal, as well as the District Courts for the District of Columbia, Eastern District of Virginia, and the Central and Northern Districts of California
- J.D. degree, University of California at Los Angeles Law School; undergraduate degree, University of Southern California
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