The Jury, Your Documents & LitigationFebruary26,2004

For Training Purposes Only

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Section 1: Lawsuits & Your Documents

Section 2: Communicating Carefully: Writing Do’s & Don’ts

Section 3: Proper Handling & Distribution of Your Documents

Section 4: Attorney Client Privilege Basics

Your Documents and Litigation

The Jury, Your Documents & LitigationFebruary26,2004

For Training Purposes Only

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The Jury, Your Documents & LitigationFebruary26,2004

For Training Purposes Only

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Documents To Be Produced | From the headlines:

Microsoft emails focus on DR-

DOS threat April 28, 1999By Dan Goodin Staff Writer, CNET News.comMicrosoft chief executive Bill Gates directed his staff to explore how a competing operating system might fail when running Microsoft applications, according to evidence released today in Caldera's private antitrust lawsuit against the software giant.

Gates's directive was part of a series of high-level discussions about how to compete against DR-DOS, a rival to Microsoft's MS-DOS.

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Microsoft emails focus on DR-DOS threat (continued):

"If you're going to kill someone there isn't much reason to get all worked up about it and angry," Allchin wrote in an email discussing how Microsoft should compete against Novell. “ “Any discussions beforehand are a waste of time. We need to smile at Novell while we pull the trigger.”

Caldera filed a lawsuit accusing Microsoft of using predatory tactics to drive the rival operating system out of the market.

Microsoft e-mail evidence

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Just

In this case, employees

claimed that an email message instructed them to destroy

documents

The Jury, Your Documents & LitigationFebruary26,2004

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From the Headlines:

The Jury, Your Documents & LitigationFebruary26,2004

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Company Memo

“As part of the job turnover I gave ___________ the reports and told him ‘these need to be reported, there is a time limit’.

More than once he commented, that he didn’t want to report this stuff because in his experience ‘once you stir up those EPA guys, they will keep asking questions’.

I can see disaster on the horizon just as clearly as some people could prognosticate Pearl Harbor in December, 1941.”

What you say and what you write may become exhibit #1 in a lawsuit.

What you say and what you write may become exhibit #1 in a lawsuit.

The Jury, Your Documents & LitigationFebruary26,2004

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Company Memo

“Since the advent of the new…system…

Regrettably this ill-advised, ill-thought out and expensive system is in place and the implementation process is irreversible.

However, we must attempt to make corrective adjustments to the system before…(it) mushrooms out of control.”

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Look Before You Leap

•All Agilent documents may be subject to review and interpretation by others.

•A poorly written document may be worse than no document if litigation ensues.

The Jury, Your Documents & LitigationFebruary26,2004

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“Documents” requested include: “information stored in any AGILENT computer server”

The Jury, Your Documents & LitigationFebruary26,2004

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Subpoena requests speeches made by Ned Barnholt

Redacted

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Excuses that won’t work in avoiding document production

Excuses that won’t work in avoiding document production

•It’s marked “Confidential,” “Private,” “Restricted,” etc.

•It’s not an Agilent document.•It’s a trade secret.•It’s my personal file.•I am too busy.•It will take too long.•You can get it from someone

else.

Document Discovery

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What You Say Counts

Even if:

•Your heart was pure

•You shouldn’t have said it

•You’re new in your job

•You said it, not wrote it

•It was internal only

•Etc.

The Jury, Your Documents & LitigationFebruary26,2004

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Minimize Misinterpretation

Avoid:

•Speculation

•Ambiguity

•Generalities

•Exaggerations

Instead:

• Be accurate and exact

• Say it simply

The Jury, Your Documents & LitigationFebruary26,2004

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Avoid Using Legalisms

For Example:•“due process”•“negligent/negligence”•“illegal or unlawful”•“liable/liability”•“guilty”•“criminal”

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Don’t write for the wrong reasons:

•To impress the boss – “look at me! I found 25 hazards around our company today.”

•To cover your tail (“CYA”) – “Here is a list of 15 defects in our construction program. Whew! I’ve told you, so don’t blame me!”

•To transfer a “monkey” – “Boy this is really screwed up. You better fix it, or you’ll be in trouble!”

•To vent anger or other emotion – “Now I’ve got you, you *@?#*!”

•To show off your literary skills – “Someday I’ll write a book about all of this.”

The Jury, Your Documents & LitigationFebruary26,2004

For Training Purposes Only

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Write for the right reasons:

to communicate

to report

to analyze

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•Keep records only for as long as they have significant business or legal purpose

•Different documents have different retention schedules

•Note: retention schedule is suspended once discovery has started until the trial is completed

Records Retention

Agilent Records and Information

Management Policy

Agilent Records and Information

Management Policy

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Choose The Right Communication ChannelNeal Patterson, CEO at medical software

maker Cerner Corp sent an email to 400 managers. "Hell will freeze over before this

CEO implements ANOTHER EMPLOYEE benefit in this culture...We are getting less than 40 hours of work from a large number of our Kansas City-based employees. ...As managers - you either do not know what your EMPLOYEES are doing; or YOU do not CARE... You have a problem and you will fix it or I will replace you...What you are doing, as managers, with this company makes me SICK."

Within hours this e-mail made its way to a Yahoo Web site. Within 3 days, Cerner stock dropped 22%.

The Jury, Your Documents & LitigationFebruary26,2004

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Example: attorney-client privilege and the Martha Stewart case.

Attorney-Client Privilege | From the Headlines:

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Understanding Attorney-Client Privilege

The privilege is an important part of our legal system:

- encourages full and frank disclosures between attorneys and their clients.

- based on the idea that attorneys can only provide sound legal advice - which in turn promotes the interests of justice - if their clients feel free to confide in them.

Source: © LRN “Attorney- Client Privilege” module

The Jury, Your Documents & LitigationFebruary26,2004

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Understanding Attorney-Client PrivilegeWhat the privilege protects:• communications between attorney and client.

Does not protect:• underlying facts being communicated.

Bottom Line:

The privilege protects you from having to answer questions about what you’ve discussed with your attorney, but it doesn’t protect you from having to disclose the facts that led you to talk with your attorney in the first place.

Source: © LRN “Attorney- Client Privilege” module

The Jury, Your Documents & LitigationFebruary26,2004

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Understanding Attorney-Client Privilege

What the privilege does not protect:

• You can’t protect evidence or documents by simply turning them over to a lawyer.

• If the documents existed before you spoke with the lawyer, they’re not protected.

Source: © LRN “Attorney- Client Privilege” module

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Understanding Attorney-Client PrivilegeWhat the privilege protects

Example:

Let’s say you’re a manager and you fax a message to a friend, advising him to sell some stock based on inside information that’s likely to affect the stock’s value.

If the friend hands the faxed document over to his lawyer, the lawyer would still probably have to turn it over during a lawsuit. The document existed prior to the conversation between the client and his lawyer.

Source: © LRN “Attorney- Client Privilege” module

The Jury, Your Documents & LitigationFebruary26,2004

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Understanding Attorney-Client Privilege

The essentials:

• The privilege is generally in effect only when a client seeks legal advice or assistance from a lawyer acting as such on the client’s behalf.

• Communications from the client to the lawyer made for the purpose of seeking or facilitating legal advice or legal services – not for the purpose of obtaining assistance in committing or covering up wrong doing – are privileged, unless the client gives up, or waives, the privilege.

© LRN “Attorney- Client Privilege” module

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In a corporate setting, a request for legal advice is not always a prerequisite

•As part of a “preventive law” function of counsel, there is a need for “ongoing review”

•Counsel may keep themselves informed of company activities by self-initiated communications with employees

•Counsel has every reason to initiate fact finding to support sound and informed advice