?When a company gets sued, HR is involved early and often—right up until the end of the litigation.
Adam Rosenthal, an attorney with Sheppard Mullin in San Diego and Los Angeles, shared ways that HR can help employers win cases during his session on June 13 at the SHRM Annual Conference & Expo 2023 in Las Vegas.
Initial Steps
After the company gets a letter from a plaintiff’s attorney saying the company is being sued, HR should take five actions with the company’s attorney, Rosenthal said:
- Clarify HR’s role in the investigation and defense of the lawsuit.
- Request assistance with a “litigation hold,” which may involve more than just preserving e-mails. It may encompass preserving even texts, Slack messages and videos.
- Establish preferences regarding communications with in-house and outside counsel to maintain the attorney-client privilege.
- Decide whether leadership would like an early and privileged investigation and assessment. HR has the opportunity to provide leadership with a candid assessment of the situation, the individuals involved and any concerns they have with the case going forward.
- Determine if counsel believes HR could have made better or different decisions.
Rosenthal also shared the mechanics of maintaining attorney-client privilege, including:
- Concluding each correspondence with counsel by asking for their legal advice.
- Affixing proper headings to an e-mail that is intended to be subject to the privilege.
- Keeping the communication confidential and limiting the distribution list to a need-to-know basis.
“Remember, litigation is nonfiction storytelling,” Rosenthal said. HR helps shape the story, he noted.
Helping with the Investigation and Litigation Assessment
When HR professionals are asked to help with litigation investigation and assessment, Rosenthal recommended they:
- Determine whether the investigation is covered by the attorney-client privilege.
- Establish parameters around the scope and purpose of the investigation.
- Find out what the final work product should look like, whether e-mail, memo, report or a conversation.
- Plan interviews carefully, paying attention to confidentiality, credibility and comprehensiveness.
- Help gather facts, documents and potential evidence.
- Confirm that the litigation hold is being honored.
- Think like a plaintiff’s attorney, who will try to uncover missteps at the company. Don’t sugarcoat investigation findings. If there were missteps, let the company’s attorney know so the corporate counsel isn’t surprised by them later in the litigation and can deal with them head on.
- Help outside counsel, if the company has one, better understand the company’s culture, the plaintiff’s experiences at work and contextual clues to better understand what happened and the disgruntled employee’s motives. Presumably, in-house counsel, if a company relies on them instead, would be more familiar with company culture, but HR still might fill them in on corporate cultural issues they don’t know.
HR’s ultimate decision, recommendation or investigation findings should not be privileged, unless counsel explicitly directs otherwise, he noted.
Discovery
The meat of litigation is discovery, Rosenthal said. That’s when each side gathers information from the other relating to the case.
Evidence—even damaging information—has to be produced, he said.
HR often is enlisted to provide depositions, Rosenthal noted, and should “prepare a lot for a deposition.” HR should meet with the company attorney multiple times to get ready.
At the deposition, Rosenthal said HR should:
- Actively listen.
- Understand the question before answering it.
- Always tell the truth and never guess.
- Listen to the objections.
- Don’t fight with opposing counsel.
It’s perfectly acceptable to hedge unless HR has perfect recollection and 100 percent confidence in their response, he said.
Trials Are Rare
Most cases don’t go to trial, Rosenthal said, noting that trials are expensive.
But if they do go to trial, HR can, under attorney-client privilege, help company attorneys figure out who might be reliable witnesses for the business or not, he said. Among the most reliable individuals to testify on the company’s behalf often are, he noted, the HR professionals themselves.