Transcript Document

LEGAL LIMITS
TO
COMMUNICATION
COMMON LAW FRAUD
 Cunning
 Deception
 Artifice
 Cheat
 Circumvent
 Breach of Trust
 Breach of
Confidence
 Undue Advantage
 False Material
Representation
 Known to be False or
Asserted Without
Knowledge of the
Truth
 Intended to be Acted
Upon
 Relied Upon
 Caused Injury
STATUTORY FRAUD
 Similar to common law fraud
 False representation of a past or
existing material fact
 Made to induce person to enter into a
contract
 Relied upon by person in entering into
contract;
or
Material false promise to do an act
Made with intention of not fulfilling it
Made to induce person to enter into a
contract
Relied upon person in entering into
contract
ACTUAL DAMAGES
If court/jury finds that
person acted with “actual
awareness” of falsity
(inferred where objective
manifestations indicate
that the person acted with
actual awareness), it may
award exemplary damages.
NEGLIGENT MISREPRESENTATION
 Representation made by party in
a transaction in which he/she
has a pecuniary interest
 Party provides “false
information” for the guidance of
others in their business
 Party did not exercise reasonable
care or competence in obtaining
or communicating the
information
 Recipient suffered a pecuniary
loss by justifiably relying on such
information
TEXAS DECEPTIVE TRADE
PRACTICES ACT
 Purpose: to protect consumers
against false, misleading and
deceptive business practices,
unconscionable acts, and
breaches of warranty
~
Very few defenses
~
Applies to the sale and lease of
personal and real property
~
Victim does not have to rely on
representation
LAUNDRY LIST ITEMS (SUMMARY)
 Passing off goods or services as those of another
 Causing confusion or misunderstanding
 Misrepresenting attributes of goods or services
 Misrepresenting agreements and legal rights
 Misrepresenting authority
But
Mere puffing is not actionable
Personal belief
Information generally known to listener
Listener would not expect speaker to have superior
knowledge
NONDISCLOSURE
 Failure to disclose
information concerning
goods or services which
was known at time of
transaction if such failure
to disclose was intended to
induce consumer into
transaction which
consumer would not have
entered had the
information been disclosed
REMEDIES
 Actual damages
 Lost profits
 Loss of use
 Expenses
 Three times actual
damages
 Attorney fees
 Injunctions
DEFAMATION
 Injury to reputation
 Whether a person of ordinary
intelligence would perceive
entire statement to affect
reputation, in light of
surrounding circumstances
 Question of law for court
unless statement is of
ambiguous
or
doubtful
meaning
 Ambiguous language may be
defamatory
 Not all falsehoods are
defamatory
ELEMENTS OF DEFAMATION
False and defamatory
statement
Published to third party
Publication results from
intentional or negligent
conduct
LIBEL/SLANDER/BUSINESS
DISPARAGEMENT
 Libel – Written
 Slander – Oral
 Business Disparagement Defames business
reputation. Must have
element of malice
PER SE DEFAMATION
 Attribution of criminal
activity
 Attribution of moral
turpitude or dishonesty
 Attribution of business
dishonesty
 Attribution of loathsome
disease
 Attribution of racism
 Attribution of bankruptcy
or financial impropriety
APPLICATION OF PER SE DOCTRINE
Slander – rigorously
applied
Libel – not as important
because libel is
controlled by statute
Business
Disparagement – no per
se violation
COMMUNICATION AND LITIGATION
What is discoverable?
 Generally, any unprivileged
information that is relevant
to subject matter of
lawsuit
 Includes witness or party
statements whether or not
prepared in anticipation of
litigation
 Includes electronic
communications
MEMORANDUM AND REPORT WRITING
 More fact than opinion
 Watch out for
admissions
 Carefully word critical
self analysis
 Limit circulation
 Limit drafts
*Remember: Anything you write may
be discoverable
PRIVILEGES AND WORK PRODUCT
Exempts certain
communications from
disclosure in lawsuit
Allows for freer
communication between
clients and attorneys
Attorney/client privilege
and work product of a
party are interwoven
ATTORNEY/CLIENT PRIVILEGE
Persons covered:
 Attorney
 Attorney’s representatives
 Client
Client’s representatives, which
include:
Persons having the authority to
obtain legal services or to act on
legal advice on behalf of client
Any other person who, for
purposes of effectuating legal
representation for client, makes or
receives a confidential
communication while acting in the
scope of employment for the client
COMMUNICATIONS PROTECTED
Attorney/Client
communication
Confidential
communication
For legal assistance
Privilege lasts as long as client wants to
assert it. It does not end with
representation.
PARTY WORK PRODUCT
 Used to be “attorney” work product
 Expanded to include certain work
product of parties
 Work product of a party or its
representatives – including the
party’s
attorneys,
consultants,
sureties, indemnities, insurers,
employees or agents – exempt from
discovery
 Applies to materials prepared,
mental impressions developed, or
communications
made
in
anticipation of litigation or for trial
 Purpose is to allow the attorney to
properly prepare for trial
ANTICIPATION OF LITIGATION
 After the occurrence or
transaction upon which
suit is based
 Reasonable person would
have
anticipated
the
litigation
 Party believed in good
faith
there
was
a
substantial
chance
litigation would follow
Note: The materials must also have been
prepared for a party or its attorney in the
suit for which the privilege was asserted.
CORE WORK PRODUCT
Work product of an attorney or attorney’s
representative – not discoverable
NON-CORE WORK PRODUCT
Does not reflect attorney’s thought processes.
Can be discovered if other side proves “need and
hardship”
PRIVILEGE DOES NOT EXEMPT
Witness information
Photographs
Witness statements
DOCUMENT AND EVIDENCE
RETENTION
Retention/destruction
policy
Electronic
“documents” included
Spoliation
RETENTION/DESTRUCTION POLICY:
 Written
 Coincides with state and
federal mandates
 Enforced uniformally
 Reviewed and updated
periodically
 Addresses electronic media
 Will partially shield
company from allegation
of destroying relevant
evidence
WHEN YOU GET NOTICE OF A CLAIM:
 Stop rotation of backup media
 Preserve all existing backup
 Stop decompression,
defragmention, etc.
 Make sector by sector copies of
relevant hard drives
 Download all electronic logs,
usage, records, audit trails,
activity logs to storage device
 Preserve hardware that might
contain data
 Locate all computers that may
have relevant data
SPOLIATION
 Not what happens to your
food
 When a party has possession
of a piece of evidence at a
time he knows or should have
known it will be evidence in a
controversy, and he thereafter
disposes of it, makes it
unavailable, or fails to
produce it, he is guilty of
spoliation
 Courts will take measures to
make sure a litigant’s rights
are not impaired by the
spoliation
 May give jury charge that explains
what spoliation is and that there is a
a presumption that the evidence,
had it been produced would have
been unfavorable to the party who
did not produce
 Court may also tell the jury that if
they find that the party had
possession of evidence at the time
of the occurrence that it knew or
should have known it would be
evidence, then the jury may
presume it would have been
unfavorable to the party who did
not produce it
 Court can also enter “death penalty
sanctions,” deny admission of
evidence and other penalties
WHAT TO DO
When something
happens that leads you
to believe that a claim
may arise, do not
destroy the evidence,
regardless of your
document retention
policy