The Rules of Evidence protects communication between attorneys and clients from being revealed to the other side during a dispute. It’s a basic concept found in federal and state rules of evidence throughout the country. It often comes into play when an employee or former employee alleges harassment or other wrongdoing, according to a report published by Lynch Service Company.

Harassment accusations are often a surprise. The company needs to figure out what really happened, and time is almost always an issue. It’s understandable that leaders want to start asking questions and investigating the situation.

If this happens in your organization, make sure your team resists the urge to jump into an investigation without an appropriate plan or your company could lose its attorney-client privilege. In many cases, the company accused of wrongdoing is unpleasantly surprised to learn that they will be forced to give the other side access to many of the internal communications the company assumed would be kept private. The human resources team and managers must navigate early investigations carefully and make sure the proper individuals are conducting them.

Read the article.

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The U.S. Supreme Court has agreed to decide whether companies can use employment contracts to prohibit workers from banding together to take legal action over workplace issues, reports The New York Times.

Adam Liptak writes that the court will consider three cases that follow a series of Supreme Court decisions endorsing similar provisions, generally in contracts with consumers. The question for the justices in the new cases is whether the same principles apply to employment contracts.

“In both settings, the challenged contracts typically require two things: that disputes be raised through the informal mechanism of arbitration rather than in court and that claims be brought one by one,” Liptak writes. “That makes it hard to pursue minor claims that affect many people, whether in class actions or in mass arbitrations.”

Read the NYT article.

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Reuters is reporting that Japan’s Takata Corp is expected to plead guilty to criminal wrongdoing as Friday as part of a $1 billion settlement with the U.S. Justice Department over its handling of air bag ruptures linked to 16 deaths worldwide, sources said.

David Shepardson writes that the settlement includes a $25 million criminal fine and $125 million in victim compensation. He added that his sources told him the settlement also will include  $850 million to compensate automakers who have suffered losses from massive recalls.

“The company is poised to plead guilty to wire fraud, or providing false test data to U.S. regulators, according to the sources, who were not authorized to discuss the settlement publicly,” according to the report.

Read the Reuters article.

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Veteran trial lawyer Jay Old has joined commercial litigation firm Hicks Thomas LLP where he will continue to represent construction, insurance, petrochemical and health care companies as part of his client portfolio.

Old’s addition will add offices in Austin and Beaumont. Old joined the firm effective Jan. 1.

“We are thrilled to be adding Jay and his team. He’s an exceptional lawyer with an outstanding track record,” said John B. Thomas, name partner and firm co-founder. “Many of us have known Jay for years, dating back to our days together at Andrews Kurth.”

Old’s clients include refineries, construction contractors, manufacturers, hospital systems and insurers. Joining him is labor and employment lawyer Jim Henges, along with four other lawyers from Old’s firm.

“I like to say I represent the job creators,” Old said. “I’m very excited to be joining the Hicks Thomas team, and hope to add to its reputation as a premier trial firm.”

Old is a frequent speaker at continuing education programs for lawyers across the country. He also is a former president of the Texas Association of Defense Counsel and has chaired the Construction Law Section of the State Bar of Texas.

He has defended national clients in statewide and regional mass tort litigation, in toxic torts, construction and product liability cases. He also successfully defended insurance companies in a series of high-profile trials involving hailstorm claims in Galveston and elsewhere.

Old is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and has been recognized on the Texas Super Lawyers list every year since 2005. A native of Beaumont, he is a graduate of Texas A&M University and the Texas Tech University School of Law.

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BTI Consulting Group’s 2017 ranking of U.S. law firms that corporate lawyers never want to face in court includes Dallas’ Bailey Brauer PLLC based on the firm’s successful work in high-stakes litigation across the nation.

In a news release, the firm, founded in 2013 by former big firm lawyers Clayton Bailey and Alex Brauer, said it has successfully represented major corporations, family-owned businesses and high-net-worth individuals in a variety of business disputes by relying on years of expertise trying and appealing cases and negotiating favorable settlements.

“It’s a point of pride to be on this impressive list,” says Bailey, who is widely recognized for his work in state and federal trials and appeals. “General counsel call on Bailey Brauer because we provide the experience and quality they expect while keeping a close eye on the bottom line.”

Read more about the award.

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A New York Supreme Court judge on Tuesday agreed to dismiss a defamation suit brought by political strategist  Cheryl Jacobus against Donald Trump, reports The Hollywood Reporter.

The suit was based on a Trump tweet, in which he said that Jacobus had “begged” him for a job and went “hostile” when she was turned down. He also called her a “major loser” with “zero credibility.”

New York judge Barbara Jaffe granted Trump’s motion to dismiss.

She found that a reasonable reader would recognize Trump’s schoolyard type squabble as rendering statements of opinion, writes Eriq Gardner.

Read the Hollywood Reporter article.

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Johnson & Johnson won a ruling cutting almost in half a $1.04 billion jury award to patients who accused the company of hiding defects in its Pinnacle artificial hips that had to be surgically removed, reports Insurance Journal.

The jury’s finding that officials of J&J and its DePuy unit failed to properly warn doctors and patients about the artificial hips’ flaws is intact. But U.S. District Judge Ed Kinkeade in Dallas found the panel’s punitive-damage awards to six patients were excessive and should be reduced, according to court filings.

“J&J still faces almost 9,000 lawsuits accusing the company of illegally marketing the flawed metal-on-metal hips. J&J stopped selling the devices in 2013 after the U.S. Food and Drug Administration toughened artificial-hip regulations,” according to reporter Jef Feeley.

Read the Insurance Journal article.

The Hill is reporting that President-elect Donald Trump will not settle a lawsuit against celebrity chef Geoffrey Zakarian, a lawyer for the Trump Organization told a judge Tuesday.

Trump’s breach of contract alleges the celebrity chef backed out of plans to open a new restaurant in Trump International Hotel in Washington, D.C.

Zakarian’s withdrawal from the deal followed Trump’s claims that Mexican immigrants included criminals and rapists, reports Max Greenwood

Lawyers for the Trump Organization and for Zakarian’s company told the judge that the two parties had reached an impasse.

Read The Hill article.

Gardere Wynne Sewell LLP successfully represented Matrix Petroleum Holdings LLC in a breach of contract suit against Talisman Energy USA Inc. A Texas appeals court decided against lifting an injunction that barred Talisman from proposing to drill mutually owned oil and gas wells on an Eagle Ford shale ranch.

In a release, the firm said the Fourth Court of Appeals ruled that Talisman’s actions threatened injury to real property. While Matrix is a minority stakeholder of the mineral leases, the companies had agreed to jointly develop interests.

The Gardere team was led by partners Alexander C. Chae and Mike Seely.

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The San Diego Union-Tribune has been tracking the epic class action litigation against Donald Trump and his defunct Trump University, presenting an inside look at the legal maneuvers, the document leaks, the economic and emotional pain suffered by plaintiffs, and the eventual settlement with the future president of the United States.

Reporter Kristina Davis writes that the Trump University lawsuit landed at Zeldes Haeggquist & Eck, a small downtown San Diego law firm, the way so many cases do — with a phone call.

“The class-action lawsuit she filed against Donald Trump and his defunct Trump University became a centerpiece of the presidential campaign, featured in debates and on ‘Saturday Night Live.’ The end result: a $25 million settlement by the president-elect for thousands of former students 6½ years later,” writes Davis.

The attorneys’ big break came when some former Trump University employees leaked playbooks and scripts used by instructors.

Read the Union-Tribune article.

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Reuters is reporting that a Washington judge has ordered Republican President-elect Donald Trump to give a deposition in a lawsuit against celebrity chef Jose Andres stemming from Trump’s disparaging remarks about Mexican immigrants.

Superior Court Judge Jennifer Di Toro on Wednesday directed Trump to testify in New York about Andres’ restaurant deal at Trump’s luxury Washington hotel. She set a time limit of seven hours on the event and ordered that it will take place during the first week of January.

“Trump is suing Andres for $10 million over breach of contract after Andres backed out of a plan to open a restaurant in the Trump International Hotel a few blocks from the White House,” writes Ian Simpson. Andres has said he canceled the project after Trump denounced Mexican immigrants in June 2015 as drug dealers and rapists.

Read the Reuters article.

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A lawyer for former National Football League players seeking damages and medical treatment for brain injuries suffered while playing football says the U.S. Supreme Court’s rejection of a legal challenge to a $1 billion settlement from the NFL means players can get the help they need, according to a post on the website of Androvett Legal Media & Marketing.

Matthew Matheny, a lawyer with Provost Umphrey LLP in Beaumont, who represented some of the players said:

“We are very pleased that today the United States Supreme Court rejected the appeals of a very few objectors to the NFL concussion settlement. The court’s decision should allow the settlement to become final and effective, meaning that thousands of former players will soon have the opportunity to receive the medical screening, diagnosis and treatment – as well as the compensation – they deserve. We expect the details of the baseline assessment and compensation programs to be forthcoming.”

Exterro has published a white paper titled “Top 10 E-Discovery Cases of 2016,” which reviews the top e-discovery cases of 2016 and their implications for practitioners.

It’s been a year since the Federal Rules of Civil Procedure were amended. That’s why reviewing some of the most defining cases in e-discovery during 2016 is vital when it comes to understanding how courts define these new amendments, according to the company.

This white paper discusses:

• The top 10 most viewed or downloaded cases in 2016 from Exterro’s E-Discovery Case Law Library
• Simplified case briefs with the key case takeaways and issues
• Expert analysis and resources to help solve or prevent the same mistakes made in these cases

Download the white paper.

In-house counsel and company executives who can make decisions need to attend hearings to see what they’re getting for their legal fees, patent judges said conference sponsored by University of California Berkeley Center for Law & Technology and Stanford Law School.

In its report on the conference, Bloomberg Law quotes Judge James Donato, U.S. District Court for the Northern District of California: “I am amazed that you all don’t show up with more regularity, particularly when you’re looking at a summary judgment motion or have a Markman” hearing on claims construction “or some other significant proceeding where you have spent in all likelihood six figures in legal fees and costs to get that thing ready for me to decide.”

Judge Ron Clark, chief judge for the U.S. District Court for the Eastern District of Texas, requires the general counsel or a corporate-level decision maker to attend hearings either in person or via phone to understand what’s happening and what the court demands, according to the Bloomberg report.

Read the Bloomberg article.

A unanimous panel of the Sixth Circuit recently rejected a manufacturer’s attempt to compel arbitration under an expired contract in Linglong Americas, Inc. v. Horizon Tire, Inc., reports Butler Snow LLP.

Erin Palmer Polly explains that the manufacturer and its distributor entered into a collaboration agreement that contained an arbitration clause.

“The agreement expired and was not renewed, but the manufacturer and its distributor continued to work together and continued to make various representations of continued involvement,” she writes. “Approximately three years after the agreement expired, the parties’ relationship deteriorated and resulted in a federal court lawsuit.  The manufacturer attempted to compel arbitration and pointed to the arbitration provision in the collaboration agreement.”

She points to two important lessons to be learned from the case.

Read the article.

While Wells Fargo’s new chief executive has responded to his company’s recent unauthorized-accounts scandal by saying his “immediate and highest priority is to restore trust in Wells Fargo,” the bank has been taking a different approach with individual customers, reports The New York Times.

“The bank has sought to kill lawsuits that its customers have filed over the creation of as many as two million sham accounts by moving the cases into private arbitration — a secretive legal process that often favors corporations,” write reporters Michael Corkery and Stacy Cowley.

Customers argue that they couldn’t have agreed to arbitration, considering they didn’t sign up for the accounts in the first place. The bank counters that the agreements in the customers’ original contracts also cover the disputed accounts.

Read the NYT article.

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A federal jury in Dallas ordered Johnson & Johnson and one of its subsidiaries to pay more than $1 billion in damages Thursday for “despicable and vile conduct” in selling Pinnacle metal-on-metal hip implants that they knew were seriously defective, reports The Dallas Morning News.

The New Jersey pharmaceutical and medical device maker and its DePuy Orthopaedics subsidiary must pay damages to six California plaintiffs who say they suffered serious chronic and painful medical problems caused by the device.

“The trial was the third in a series of bellwether cases being held by U.S. District Judge Ed Kinkeade,” reports Mark Curriden of Texas Lawbook for The Morning News. “More than 8,900 cases against Johnson & Johnson and DePuy have been filed across the U.S. The lawsuits have been consolidated in what is known as multi-district litigation.”

Read The Morning News article.

Practical Law will present a webinar discussion of the key issues and best practices surrounding social media in litigation. The webinar will be Wednesday, Dec. 7, beginning at 1 p.m. EST.

Samantha V. Ettari, E-Discovery Counsel at Kramer Levin Naftalis & Frankel LLP, will be the presenter. Lauren M. Sobel, Senior Legal Editor, Practical Law Litigation will be the moderator.

Topics will include:

• The duty to preserve evidence, including social media.
• Social media in discovery.
• Service of process through social media.
• Authenticating social media.
• Social media at trial.

A short Q&A session will follow.

CLE credit is available in multiple states.

Register for the webinar.

Bailey Brauer PLLC of Dallas was named to BTI Consulting Group’s 2017 ranking of U.S. law firms that corporate lawyers never want to face in court.

Founded in 2013 by former big firm lawyers Clayton Bailey and Alex Brauer, the firm has represented major corporations, family-owned businesses and high-net-worth individuals in a variety of business disputes by relying on years of expertise trying and appealing cases and negotiating favorable settlements.

“It’s a point of pride to be on this impressive list,” says Bailey, who is experienced in state and federal trials and appeals. “General counsel call on Bailey Brauer because we provide the experience and quality they expect while keeping a close eye on the bottom line.”

In a release, the firm said:

One of the country’s leading business research firms, BTI Consulting produces its annual review of the U.S. legal market by conducting independent confidential interviews with more than 300 corporate counsel from the world’s largest corporations over a one-year period.

“It’s gratifying to know that in-house lawyers are recognizing the level of work we deliver at Bailey Brauer,” says Mr. Brauer, a trial and appellate lawyer who has helped clients win cases in state and federal courts nationwide. “Our firm is proof that bigger isn’t always better.”

Bailey Brauer’s impressive list of courtroom victories during the past six months includes helping a nationwide food provider defeat a price-fixing claim for more than $500 million; prevailing against a major corporation that sought an injunction against its former employee; and winning a breach of contract claim for a poultry producer after a contractor violated animal welfare standards.

The firm currently is headed to trial in Dallas on behalf of an investment fund in a multimillion-dollar federal fraud case against a group of out-of-state defendants.

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A federal judge in Dallas has ordered the attorneys general of two Northeastern states to come to Texas next month to be deposed in a lawsuit brought by Exxon Mobil, according to a report posted by Androvett Legal Media & Marketing.

The company has accused Massachusetts AG Maura Healey and New York AG Eric Schneiderman of unlawfully using their powers to investigate whether the oil giant misled investors and the public by downplaying the impact of global warming. The company is seeking an injunction barring the attorneys general from demanding internal documents relating to climate change research and investor communications stretching back decades, according to the Androvett report.

“These investigations could have a potentially catastrophic effect on Exxon, based on the documents and information that have been made public so far,” says attorney Chris Hamilton of Dallas’ Standly Hamilton. “However, allowing a company that is the subject of investigations to take depositions of elected state officials regarding their motivations is highly unusual and problematic. What would happen if a criminal defendant sought the deposition of a district attorney regarding the motivation for prosecuting a case? The precedent for a court to allow this type of tactic is concerning.”

The judge’s order advised the officials to reserve Dec.13 for giving testimony in Dallas.