WHAT DO YOU MEAN WE’VE BEEN SUED?! Fifth in a Series of Six Articles
In the process of identifying potential witnesses, the natural human tendency is to discuss the full merits of the lawsuit. I strongly recommend not doing this until you have involved your company counsel in the matter. You should assume that internal conversations, emails, texts, tweets, or otherwise which discuss the lawsuit, even after it has been filed, are not privileged communications. This means that your watercooler conversation with your sales rep who tells you that the plaintiff is a notorious so and so may have to be repeated in front of a jury at trial. And far more likely, the email that says all of that will be discovered during the course of working up the matter for trial. And it will, at a minimum, shade the jury’s opinion about the company. However, the good news is that conversations with counsel are generally privileged. So, the exact rules of how this works should be discussed thoroughly at a very early date and before you begin internal discussions about the merits of the suit. Your counsel may wish to conduct the internal investigation and interview witnesses in order to protect sensitive information.
Likewise, avoid the temptation to pick up the phone to call the representatives on the other side of the suit to discuss it. While face to face or voice to voice communication with the other side may be important at some point to try to settle the matter, it should not be done without talking to counsel first. Do not give statements to the other side’s attorneys, their insurance adjusters, or investigators without talking to your counsel. If you have employees who are involved in the underlying event or contract, you should strongly consider directly instructing all involved not to discuss the lawsuit or its merits with one another.
Finally, remember a conversation about the case is only confidential if you ensure your privacy. Anybody in the office who overhears a conversation about the case is a potential witness, including support staff who may work right outside your open door. Sharing details with friends and family, for example, may also waive the privilege. Once information that would have been privileged is out in the world, it generally has lost its privileged status. In other words, you cannot put the genie back in the bottle.