Over the years, I have handled thousands of cases in Virginia, Maryland, West Virginia, and Washington DC for various corporate and commercial clients, ranging from countless Fortune 500 corporations to local business with one location. Regardless of whether the cases involve retail or restaurant clients, construction defect claims, or products liability cases, the issues and concerns that consistently arise on the defense side are markedly different from the issues that influence the plaintiff. Whether the case is in the Mid-Atlantic region or anywhere else across the country, it is critical that the corporate brand be protected on a grand scale, and that the proprietary interests of the company by closely guarded.
Managing discovery is often the most challenging and important part of a defending a corporate client. Not only can the disclosure of sensitive documents threaten corporate secrecy, but discovery requests can often be costly and time consuming if not properly controlled. This becomes even more of an issue with the new federal rules on electronic discovery. It is critical that defense counsel understand what information his client has readily available, and what resources are required to respond to certain requests. Defense counsel must be vigilant and timely in filing objections, yet reasonable enough to work with opposing counsel to limit the scope of discovery to reasonable parameters without forcing costly and unproductive discovery disputes. At the same time, counsel should have a standard practice of labeling, identifying and producing documents under protective orders to track their production and ensure that sensitive documents do not make their way into the public domain. The last thing I want to see happen is the private operating procedures or policies of my client in a case in Richmond be posted on the internet or shared with another attorney handling another case in Fairfax or Roanoke. While the specific fact patterns in falling merchandise cases, slip and falls, defective product displays, and food borne illness cases always differ, the underlying policies and procedures of a company are typically general enough that the same corporate policies in one case may be at issue in another case. Therefore, it is critical that defense counsel take appropriate action to protect those documents and ensure that they are not duplicated or kept beyond the period required by litigation.
On another level, the frequency of litigation is also an issue to consider. Whereas an individual may go through their entire life only being involved in one lawsuit, a corporation may find itself in litigation hundreds of times in a calendar year. Because of the regular appearance in the court process, a corporation faces much greater potential of impeachment from taking inconsistent positions in any given case. One of the worst things that can happen in litigation is to have what was testified to or provided in one case to be used against the corporation in another case. In essence, the corporation may impeach itself by taking inconsistent positions in different cases. If a corporate designee testifies on a topic in a deposition in Norfolk, Virginia, it is critical that his testimony not expose the company to an argument in litigation in Maryland, West Virginia or anywhere else. Therefore, defense counsel must ensure that the proper designee selected, that he or she is fully prepared to testify, not just based on the issues of the instant case, but based on how his or her testimony may affect another case. Certainly, protective orders can play a large role in minimizing this risk, but practically, it is a much more difficult to control a deposition transcript than a corporate document that is provided by counsel.
In the end, while defending the plaintiff’s claim is always the significant factor in successfully defending a corporation, defense counsel must not defend one case at the risk of increasing exposure in another case. Having defense counsel who understand such nuances and are sensitive to the needs of a corporate client helps make the difference in capable and exceptional defense counsel.
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Commercial Litigation Blog |