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