Discovery

Clawback Agreements – Friend or Foe?

Practice area:

As construction attorneys, we are no strangers to voluminous productions of client documents and communications, both in electronic and hardcopy formats, during discovery. Even with proper safeguards in place during document review, there exists the possibility that some privileged material may accidentally slip over to an opposing party.  Production of such material to a third party, especially an adversary, runs the risk of waiving attorney-client privilege or attorney work product privilege.

Rule 502(b) of the Federal Rules of Evidence creates somewhat of a safety net for inadvertent disclosures, but requires compliance with a number of steps. Fed. R. Evid. 502(b) (“disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B) [concerning inadvertent production of trial preparation materials].”) Note also that

Taking an Out of State Deposition in Rhode Island Just Got Easier!

Practice area:

On July 15, 2019, the Uniform Interstate Depositions and Discovery Act (the “Uniform Act”) was enacted in Rhode Island. R.I. Gen. Laws 9-18.1-1 et seq.  It will simplify the process of taking a deposition in Rhode Island for actions pending outside Rhode Island.  In enacting this legislation, Rhode Island joins 33 other states in adopting the uniform legislation.

Fact Scenario

You have a construction litigation matter pending in Vermont, but the architect of the project is from Rhode Island.  You want to take the architect’s deposition.  How do you go about taking the architect’s deposition?

Process Pursuant to the Previous Statute

The Vermont counsel wishing to take the deposition must provide a commission or some instruction from the Vermont trial court granting permission to take the out of state deposition.  Vermont counsel then had to retain local counsel licensed to practice in Rhode Island to commence a miscellaneous

Corporate Deposition — Multiple Witnesses At the Same Time?

Practice area:

A few years ago, I represented a process piping subcontractor in a claim against the general contractor and the owner of a coal fired power plant in Massachusetts.  While the case was unique and interesting in a number of ways, some of which may be the subject of future posts, one aspect that was new for me was taking a Rule 30(b)(6) corporate deposition of two individuals at the same time.

Rule 30(b)(6) depositions are depositions of a corporation or other business entity.  It is the corporation that is testifying.  These depositions can be helpful to obtain testimony of the corporation that will be binding on the corporation at the time of trial.  They also impose an obligation to prepare and educate the individuals who testify on behalf of the corporation — to learn what information the “corporation knows” which is often beyond one person’s personal knowledge.  The corporation designates individuals to testify for the corporation on a list of topics provided by the party noticing

Practical Tips on Working with Former Employees Who Are Key Witnesses

Practice area:

Suppose you are in-house counsel for a construction company.  Your Guaranteed Maximum Price (“GMP”) is blown and the Owner has refused to execute any change orders during the Project. You know you are heading towards a claim.  Within one week of substantial completion being achieved, the project manager that has managed the entire job gives his notice explaining he is leaving to work for a competitor.  What do you do next?  What could you have done to plan for this?  In this post, I outline practical measures you can take when faced with this challenging, complex, and yet very common scenario.

Planning Measures

The best time to deal with the issue of former employees is before the employee is hired.  Important provisions to be considered in employment policies and agreements include:

  • Confidentiality and Protection of Company Trade Secrets. An employer, particularly in the competitive market of the construction industry, has a strong and