Complexities of Utilizing Former Employees as Non-Party Witnesses in Employment Litigation
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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.
AuthorsWayne A. Schrader, IslerDare, P.C.
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