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summits
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2-4 May 2010
Arizona Grand Resort, Phoenix, AZ, USA |
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Cynthia Buhr Interview
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For in-house counsel, the attorney-client privilege continues to be challenged and scrutinized, advises Cynthia Buhr, Vice President and Assistant General Counsel at PlainsCapital Corporation. Thus, Chief Litigation Officers (CLOs) must strategically plan ahead to best protect sharing of information within their company so that people do not lose confidence in their ability to confidentially communicate with the company’s attorneys. A speaker at the marcus evans Southwest Litigation Summit 2010 taking place in Arizona, May 2-4, 2010, Buhr shares her views on protecting attorney-client privileges, projections for the future and e-discovery best practices. What are some of the issues challenging CLOs right now, and what solutions would you recommend? Cynthia Buhr: Two issues challenging CLOs are the rising cost of litigation, including responding to third party subpoenas, and the scrutiny given the attorney-client privilege as it applies to in-house counsel. Electronic discovery has added significantly to the rising cost of litigation. With e-discovery systems, in-house counsel can implement procedures which will avoid having to re-invent the wheel with each new litigation matter or outside counsel. The first step is for in-house counsel to research and understand the company’s computer systems and programs, document retention policies, and identify key employees who can assist when litigation holds come into play. A document preservation protocol is key - when that is in place, the process is streamlined, employees within the company understand their roles, and litigation costs are reduced. In addition, do not forget to explore opportunities to limit discovery or shift costs when dealing with e-discovery. Attorneys should check the laws within their jurisdiction and remember basic rules such as Federal Rule of Civil Procedure 26(b)(2)(B) and (C) which applies a two-tiered approach of considering inaccessibility and proportionality to limit the measures a producing party must take and limit the scope to achieve equitable fact sensitive results. The better you understand your company’s systems, the more effective you are in recognizing and demonstrating these standards. What developments that could affect CLOs do you expect or predict in the next few years? Cynthia Buhr: The attorney-client privilege is going to continue to be scrutinized not only by the courts but also by third parties such as auditors, the IRS, and other government agencies. In-house attorneys have to be even more studious than outside counsel when it comes to privilege because the presumption of privilege does not apply to communications between a company and its in-house counsel. The reason for the scrutiny is that in-house counsel act in both a legal and business capacity. They offer business advice and legal advice, and only the latter can be considered a privileged communication. A simple guideline is to separate legal and business communication whenever possible; attorneys should know which hat they have on at any given time, and make sure that role is known to those with whom they are communicating. The organizational structure and whether the attorney is placed in a general counsel or operational department may also need to be reconsidered. When the attorney is actually in the legal department and reporting to an attorney, the courts are more likely to protect the attorney-client privilege than if the attorney is in within an operations department and reporting to a non attorney. What are some of the opportunities that CLOs can take advantage of? Cynthia Buhr: For e-discovery, there are many vendors who can assist in controlling the cost of e-discovery; therefore, I would advise attorneys to look at all available options and select the one they feel that provides them with the most efficiencies and ease of use. For example, I use a third party vendor who assists me in collecting, processing, and de-duping emails we collect in discovery. They provide an online interface tool to give access to that data to myself and others I choose. I can grant access to outside counsel, document review contract attorneys, and others within my department. That works well for me. In larger organizations with a steady stream of e-discovery requests, it might be worthwhile to have a software program that administers it internally. What long-term strategies would you recommend to CLOs? Cynthia Buhr: Most clients prefer to avoid litigation altogether. To the extent that in-house counsel can spot possible issues and take preventative steps, they are offering a tremendous service to their clients. Of course, litigation is not always avoidable, and when it happens, I am a firm believer in rolling up your sleeves and being involved in the litigation - even if outside counsel has been hired. I prefer to partner with outside counsel and stay involved in analyzing, planning, and budgeting time and expenditures. The earlier in the litigation process that the legal issues are understood by the company, including the in-house counsel, the better you can tailor a plan of action to your clients’ specific needs. You can hopefully avoid spending time, energy and money on minor issues that do not sufficiently advance your position. The unique ability of in-house counsel to know their clients (the people in the company who require their legal services) allows them to adapt to the company’s business needs. They can offer insight to outside counsel and work in partnership in developing the best legal strategies for the litigation at hand.
This unique forum will take place at the Arizona Grand Resort, Phoenix, Arizona, May 2-4, 2010. Offering much more than any conference, exhibition or trade show, this exclusive meeting will bring together esteemed industry thought leaders and solution providers to a highly focused and interactive networking event. The summit includes presentations on best litigation practices, maximizing relationships with outside counsel and managing litigation in an economic downturn. For more information please send an email to info@marcusevanscy.com or visit the event website at www.litigationsummits.com Please note that the summit is a closed business event and the number of participants strictly limited. About marcus evans Summits marcus evans Summits are high level business forums for the world’s leading decision-makers to meet, learn and discuss strategies and solutions. Held at exclusive locations around the world, these events provide attendees with a unique opportunity to individually tailor their schedules of keynote presentations, think tanks, seminars and one-on-one business meetings. For more information, please visit www.marcusevans.com All rights reserved. The above content may be republished or reproduced – kindly inform us by sending an email to press@marcusevanscy.com
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