Fifth Amendment Fundamentals - Taking the Nickel
By Hayes Hunt and Jonathan R. Cavalier
Most in-house lawyers, if they're fortunate, haven't bumped up against the Fifth Amendment and its related issues since the bar exam. After all, the so-called "nickel" typically arises solely in the criminal context, and corporations don't have the right to plead the Fifth Amendment at an organizational level. However, with governmental investigations of varying types on the rise, and in-house counsel advising the corporation and preparing witnesses for participation in these investigations, the Fifth Amendment and its protections are an important tool in protecting the company and its employees from self-incrimination.
FIFTH AMENDMENT FUNDAMENTALS
The Fifth Amendment to the U.S. Constitution provides, in relevant part, that "no person ... shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination has been defined as the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. To plead the Fifth, or to "take the nickel," is to refuse to answer a question from a governmental body because the response could provide self-incriminating evidence of an illegal act.
Importantly, the Supreme Court has repeatedly recognized that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances," as the court held in Grunewald v. United States, 353 U.S. 391 (1957). The Fifth Amendment is intended to protect "the truthful responses of an innocent witness" where the responses of such a witness might provide the government with "incriminating evidence from the speaker's own mouth," as the court held in Ohio v. Reiner, 532 U.S. 17 (2001). The privilege is thus available to both the innocent and the guilty. Importantly, the privilege protects statements that might incriminate the witness regardless of the likelihood of prosecution; rather, the witness must simply have a reasonable fear that his or her responses might self-incriminate.
It is not uncommon for the parties to play hardball litigation to exert pressure on the other side to settle a case. But if your opposing party engages in tactics that you perceive to be coercive, should you immediately seek relief from the court? A 
Recently, the 
By Hayes Hunt and Michael Zabel
2012). You probably read about the legal battle pitched last year between technology giants Google and Oracle. In February 2012, several months before a jury found that Google did not infringe on two of Oracle's patents, the U.S. Court of Appeals for the Federal Circuit ruled that an internal email by a Google engineer was not protected under Upjohn because nothing indicated that the engineer had prepared the email "in anticipation of litigation or to further the provision of legal advice."
The second case is Custom Designs & Manufacturing v. Sherwin-Williams, 39 A.3d 372, 374 (Pa. Super. Ct. 2012). Just as in the Google case, the court in this case rejected a corporation's privilege claim under Upjohn because the record did not indicate that the disputed communication was prepared at the request of counsel. In Custom Designs, the plaintiff was a cabinet company whose building caught fire and was significantly damaged. The day after the fire, a Sherwin-Williams employee visited the site of the fire and shortly thereafter prepared two memoranda addressed to Sherwin-Williams' in-house counsel. The cabinet company later sued Sherwin-Williams, alleging that Sherwin-Williams' products had caused the fire. In discovery, Sherwin-Williams claimed privilege with regard to its employee's two memoranda to its counsel.
In 2010, the Federal Rules of Civil Procedure were amended to address certain problems with prior expert discovery rules which were interpreted to allow discovery of virtually all communications between attorneys and their retained experts. To combat rising discovery costs and ensure that attorneys and experts could speak candidly, the Federal Rules struck a compromise. Rule 26(b)(4)(C) was added to extend work product protection to communications between attorneys and their retained experts, except to the extent the communications: (i) relate to the expert’s “compensation[;]” (ii) identify “facts or data” the expert considered; and (iii) identify “assumptions” that the expert relied upon in forming the opinion at issue. Outside of these exceptions, attorney-expert communications are generally off limits. 
By Hayes Hunt and Calli Varner
months. See N.Y. Penal Law § 70.15(2). 
A recent court decision has added support to the idea that there is no privacy on the internet.
The Court’s decision may have important implications for civil discovery. For example, the Stored Communications Act prohibits companies providing electronic communication services from disclosing a user’s private information without the user’s consent. There is 
By Hayes Hunt and Jillian Thornton
, nor does the user have a reasonable expectation of privacy in information shared with third parties. “There can be no reasonable expectation of privacy in a tweet sent around the world.” Id. at *3. The court concluded that “[s]o long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary.” Id. 
By Hayes Hunt and Jillian R. Thornton
Given the ever-expanding universe of ESI, most lawyers would be wise to consider using computer-assisted review and especially predictive coding. After all, the research has shown that predictive coding is more precise, makes fewer errors and identifies more relevant documents than human reviewers. This should not come as a surprise when one considers the differences in opinion among lawyers about what information is "relevant." When you add millions of pages of documents, fatigue plays a role for human reviewers. Based on these factors in addition to the dramatic saving of time and money, it is clear that predictive coding and similar methods are going to revolutionize how we conduct e-discovery.
By: Hayes Hunt and Jillian Thornton
A decade ago, document review meant a small militia of lawyers sitting in a windowless warehouse surrounded by bankers' boxes full of paper documents. Now, thanks to extreme information inflation, the bulk of document review takes place electronically. In order to keep up with the enormous volume of electronically stored information, lawyers have employed a method featuring a combination of keyword searches and manual review. Most importantly, e-discovery can be responsible for 70 to 90 percent of the client's cost of litigation. However, recently, the universe of ESI has expanded in exponential fashion. Exabytes have devoured the smaller gigabytes in the ESI pond. What's next? Predictive coding.
costs incurred during e-discovery. Predictive coding works to drastically reduce the number of documents that are manually reviewed by lawyers. Here's how it works: The first step in the process is that lawyers review a small sample of documents and code those documents for relevance or privilege or subject matter. The software then studies the sample set and applies the coding principles that it has learned to a larger set of documents. Then, the lawyers review the computer-coded documents to further teach the program how to code. This program continues until the software identifies only relevant documents. After coding is finished, the software can be used to select a small, random population of documents for lawyers to perform quality-control checks. If errors are found, the lawyers code more sample documents until accuracy of the coding reaches an acceptable level. Then the review is complete. The software can reduce the documents that need to be manually reviewed from a set of 2 million, for example, to only 3,000 to 5,000 documents. Assume it takes a lawyer 60 seconds to review a one-page document and you can easily do the cost-effective math of predictive coding.
by: Hayes Hunt and Jonathan A. Cavalier
Contributed by Thomas Wilkinson, Jr. and Issa Mikel
Witness preparation is one of the most important components of trial and litigation practice. A simple but overlooked part of preparation is asking your witness your actual questions. You may have two or twenty essential questions that you must ask to prove your case or deal with the opposing counsel's anticipated cross exam. I have watched many lawyers prep a witness with broad and indefinite questions as if asking a direct question is somehow unethical or suggestive. On the contrary, asking your witness your questions is ethical and part of being a zealous advocate. 
We all sat transfixed last week as Will and Kate finally tied the knot. The pageantry and revelry accompanying their wedding was a fairy tale brought to life. But, what went on between the couple in those weeks leading up to the big event? 
deposition. Once your lawyer receives the transcript, you have 30 days to review the transcript with your lawyer and make 
You call your last witness and things are going great. A verdict in your client’s favor will be soon to follow. All you have to do is establish that there was moonlight. 
I was about to start a deposition at Stained Glass Factory located somewhere between Syracuse and Utica. The owner of the factory decided he wanted to sit in on the deposition of one of his employees. As a new associate, my knee-jerk response was to exclude the owner since he may influence the employee’s answers to my questions. I quickly decided that the owner could attend the deposition since his company was a party in the case. I created a record and explained that the witness’s boss was present in the room and asked whether the employee was concerned about her job. My instinct that the owner could be present was right, but for the wrong reason. 
b of pensioners with pitchforks and torches? Make a record. Confer with opposing counsel and, if there is no remedy, you and your client should walk out. 
straight in the air while my mother slowly poured a glass of milk into my mouth. There would be a brief pause -- she and I would stare at one another wondering if I was cured. After a few seconds, I'd invariably hiccup some milk. My mom and I did this at least a hundred times with limited success. Despite probabilities, I'm still convinced it works. It is what I learned. 
