litigation

Ten Things: Your Company Has Just Been Sued. Now What?

It’s hard to recall a more disconcerting feeling than getting a copy of a lawsuit filed against your company.  If you have no experience with litigation, this can be a panic-inducing moment.  And no matter how experienced you are handling litigation, your stomach will start to flutter as you read through the allegations.

I was a litigator in private practice and I definitely saw my share of litigation, big and small as in-house counsel.  Over the course of that time, I developed a standard list of “things to do” when a lawsuit came across my desk.  I did this because it’s easy to forget some basic things you need to do up-front to put yourself in the best position to defend the claim. Below are ten things to do when your company gets sued (I have added links to additional resources in key spots).

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Ten Things: Time For a Conversation About Drafting Documents and Emails

As in-house counsel, you already know that poorly drafted documents, especially emails, can hurt your company, e.g., M&A deals can get derailed or litigation extended. You can find examples every day of “bad” emails being read in court. Labels like “confidential,” “company private,” “restricted,” and “proprietary” will not protect documents from being obtained through proper legal process.

Document requests in litigation or government investigations are broad, typically calling for correspondence, hand-written notes, agreements, drafts, email (email back-up tapes), sent files, deleted emails, calendars, spread sheets, documents on tablets and smart phones, graphs, expense reports, voice mail, meeting agenda, calendar entries, copies of media articles, etc. Consequently, it’s important that your business colleagues understand the importance of properly prepared documents and emails (and the potential harm from not doing so).

Below are ten things you can use in your daily dealings and conversations with the business to help limit problems that can arise from poorly prepared documents. I have included some links to other resources as well.  A lot is focused on emails, but the rules apply to pretty much any written communication (including instant messages and recorded voicemails).  Feel free to cut and paste these into your own check-list or email (or however you best can get the word out at your company).

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