For The Defense, July 2010 - DRI Today

Credentialing, from page 51contrast, the argument to bifurcate a trial,however, is very compelling because of thedanger of prejudice to the hospital and thespecter of reversible error. Managing a trialin two phases, as mentioned above, doesnot take more time than otherwise since acase against a hospital can start immediatelyafter a verdict favoring a plaintiff. Itsaves time, in fact, because a defense verdictobviates the need for a trial altogether.ConclusionCounsel defending negligent credentialingclaims should couple the power of FederalRule of Evidence 404(b) or similar staterules with the power of bifurcation. Yourargument for bifurcation is strong becauseplaintiffs can introduce evidence of “otheracts” once they have cleared the causationhurdle of proving negligence, in thesecond, negligent credentialing phase ofa trial. And, a trial court should find yourargument persuasive that it will not haveto skirt the traditional protection FederalRule 404(b) or equivalent state rules provideto “other acts” evidence, knowing thatplaintiffs can introduce that evidence lateron, without prejudicing a jury on the “standalone” medical liability claim. One tool, theevidentiary rule or bifurcation, is unlikelyto succeed without the other. A sound strategyis to find a way to use both.Ethics, from page 86less systems, and ensure that all e-mailsand attachments containing personalinformation are encrypted;• Require that all computers, laptops,PDAs, and home computers be protectedwith complex passwords and automaticlocking when they are not in use for areasonable period of time;• Store files containing personal informationin a secure cabinet and prohibitattorneys, paralegals, and staff from leavingthem out in the open on their desks;• Redact personal information from allpaper files sent by mail or removed fromthe office;• Require third-party vendors to take adequatesteps to protect personal informationthrough language in a writtenagreement; and• Consider reducing your plan to writingand providing training on the requirementsof the plan.While it may seem a daunting and timeconsumingtask to create a security plan, itis really just good, common sense. Attorneysare expected by their clients to guardthe confidential information with whichthey are entrusted, and the same shouldbe true of personal information. With theadvent of state laws mandating the protectionof personal information and imposinglegal consequences for failing to doso, attorneys who take the time to createa security plan can avoid not only embarrassingthemselves and jeopardizing theirrelationships with their clients, but alsolegal liability as well.Waiver, from page 73cating verbally, do not communicate inthe presence of third parties or discussa communication’s content with thirdparties. Likewise, judicially share writtencommunications only with employeeswho need to know their contents dueto their corporate roles.• In preserving privilege, the role of acorporate employee participant is asimportant as that of the lawyer. Counselshould share privileged communicationswith corporate directors, in theirformal company roles only, not in theirindividual capacities.• A corporation may develop and enforcedocument preservation policies thatsecure potentially privileged materialsfrom casual access by unauthorizedemployees.• A corporation may develop internal“protocols” about who may officiallyspeak on behalf of the corporation onmatters of controversy.• Counsel who provides both legal andbusiness advice should consider maintainingseparate legal and business filesfor all work matters. In-house counsel especiallyshould try to delineate in whatcapacity he or she provides advice orservices in each matter, and whether thatadvice is of a legal or business nature.• Counsel should become familiar withattorney- client privilege standards andcase precedent in each state in which acorporation has a substantial presenceand advise the corporation to meet thetoughest standard.• Counsel should assess privilege issuesas soon as litigation is contemplated.Counsel may wish to explore agreementsor orders as contemplated by Fed. R.Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502at the earliest litigation stage. Rememberthat you must obtain either a courtorder or “so ordered” agreement to bindabsent third parties.• Counsel should carefully consider andadvise about the possible waiver issuesthat may result from following a proposedlitigation strategy. While thismost commonly arises in connectionwith “at issue” defenses, other strategiescould also impact whether a corporation’sproposed strategy will result ina privilege waiver.• An extremely aggressive, adversarialposture on attorney- client privilege andwaiver against an adversary could workagainst a corporation. In other words,people in glass houses should not throwstones.• When a corporation needs to conduct aninternal investigation, consider forminga “special corporate investigation team”to which counsel could report and whichcould act on recommendations withoutdisclosing privileged information to apotential target of the investigation.• A corporation should consider thepotential consequences of decisions towaive privilege in a governmental investigationso that it can make educatedassessments of the risks involved andthe potential impact it may have on subsequentactions.And now, back to Any Corporation, Inc.,and its attorney- client privilege issues:The correct answer about which of thosecommunications are subject to attorneycorporate-client privilege protection is allof them, or none of them, or most accurately,it depends!For The Defense n July 2010 n 91