We are always prepared to pursue or defend a claim at trial. Our ability and willingness to try cases produces favorable settlements for our clients.

Litigation

LITIGATION


PRACTICE AREA / UTAH LITIGATION ATTORNEYS

A key principle of the litigation practice at Richards Brandt is that we are always prepared to pursue or defend a claim at trial. Our ability and willingness to try cases produces favorable settlements for our clients.

EFFICIENT



It is in the best interest of our clients for us to approach every case like we will have to try it. In order to bring cases to a close as quickly as possible, we follow this important principle. Our attorneys have worked more cases in the courtroom than most other law firms in Utah but litigation is only one path to resolution.

Our attorneys present the options and prepare clients for possible outcomes at each phase of the resolution process. At any point throughout the process, you and your attorney may want to consider mediation or arbitration. Meet our Mediators.



TRIAL EXPERIENCE



Our law firm’s strength lies primarily in the depth of experience of our trial lawyers. Few law firms in Utah have the courtroom experience that we have accumulated here at Richards Brandt.

Trial lawyers represent clients involved in both civil and criminal litigation. The trial lawyer’s job requires excellent analytic skills and an in-depth understanding of the law. Persuading a judge or jury requires each piece of evidence be presented and disputed according to a complex set of rules. In addition, trial lawyers review files, contact witnesses, take depositions, try cases, prepare orders, and talk to clients outside of court throughout the case. The preparation for a trial can take months and sometimes years.



COMMITMENT TO THE CLIENT



Our attorneys work with individuals, small local business and large international companies. Passion for the law is important, however a commitment to the client is what we have built our reputation on over the last 40 years.

Businesses as well as individuals face challenges in each stage of their lives. We have worked with clients over decades protecting their family and livelihood from claims and possible litigation. Earning the trust of our clients over time has been our greatest success. Our clients can count on us to evaluate risk, prepare important legal documents and protect their assets long term.



“Never stir up litigation. A worse man can scarcely be found than one who does this.”

Abraham Lincoln





RECENT LITIGATION UPDATES



The Work-product Doctrine: Application to Documents Relied on and Prepared by Business Entities’ Internal Investigations



LITIGATION ATTORNEYS AT RICHARDS BRANDT IN SALT LAKE CITY, UTAH



FREQUENTLY ASKED QUESTIONS (FAQS)



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE / FEATURED FAQS



Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE – CASE STUDIES





Utah Manufacturing Company Needed Employment Contracts For Key Staffers




Utah Construction Company Needed Planning For Business Growth & Protection




Utah Family Enterprise Needed Guidance and Representation to Sell Business

REVIEWS




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The Work-product Doctrine: Application Generally

February, 2016

Introduction

The work-product doctrine provides an attorney a certain level of autonomy regarding mental impressions, conclusions, opinions, and legal theories surrounding a case. This article discusses the applicability of the work-product doctrine generally.

Utah Work-product Generally

The work-product doctrine is a judicially created doctrine now codified in Utah Rule of Civil Procedure 26(b)(5). The work-product doctrine protects documents that are prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative. Utah R. Civ. P. 26(b)(5). Documents that convey the mental impressions, conclusions, opinions, or legal theories of an attorney or party are afforded heightened protection as “opinion work product.” Gold Standard v. American Barrick Resources Corp., 805 P.2d 164, 168 (Utah 1990). The party asserting work-product privilege has the burden of establishing its existence. See id. at 170.

The discovery procedures under the Utah Rules of Civil Procedure were substantially amended in 2011. Subsequent Utah decisions clarify that the amended language in Rule 26 maintains the same application as the former language in Rule 26. See Allred v. Saunders, 2014 UT 43, ¶¶ 15-19, 342 P.3d 204 When interpreting the work-product doctrine, Utah courts can continue to rely on both pre-2011 Utah case law and federal case law interpreting the federal rule. See Gold Standard, 805 P.2d at 167-68; Allred, 2014 UT 43 at ¶ 17.

However, the work-product doctrine is not absolute. Non-opinion work-product may be discoverable if the party seeking discovery can show a substantial need for the information and that it cannot be obtained without substantial hardship. Id. This represents the dual policy goals aimed at preserving the adversary system and providing attorneys with a zone of privacy permitting effective client advocacy. See Featherstone v. Schaerrer, 2001 UT 86, ¶ 9, 34 P.3d 194.

Application

For written materials to fall under the work-product privilege, three criteria must be met: (1) the materials must be documents and tangible things otherwise discoverable, (2) prepared in anticipation of litigation or for trial, (3) by or for another party or by or for that party’s representative. Gold Standard, 805 P.2d at 168. For a party to assert work-product protection, the party must show that the documents or materials were prepared in anticipation of litigation by or for a party or that party’s representative. See S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶ 29, 200 P.3d 643.

In Utah, “an inquiry to determine whether a document was prepared in anticipation of litigation should focus on the ‘primary motivating purpose behind the creation of the document.’” Gold Standard, 805 P.2d at 170. Utah law seems to preclude documents that were prepared in the ordinary course of business if the primary purpose of the document was not to assist in anticipated litigation. Id. at 171 (“If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting report is producible in civil pretrial discovery.”). However, this analysis does not categorically preclude documents that have the markings of business purpose.

Documents prepared in the “regular course of business” and “in anticipation of litigation” are not always mutually exclusive and dichotomous fields.

Many business decisions are made in anticipation of the inevitable litigation. The “because of” inquiry offers a more administrable standard, effectively resolving uncertainty at the margins in favor of work product protection. At the same time, protection is not unduly expanded if the document would not have been produced but for the anticipated suit. Evaluating the risks of litigation that a business plan will face is often integral to the plan and is in this sense generated in the course of business. There is no persuasive reason to deny work product protection because the document has these marks of business purpose, if it was prepared because of the anticipated litigation.

Moore’s Federal Practice, § 26.70(3)(a).

Thus, even documents that have the markings of business purpose may be protected by the work-product privilege as long as the primary purpose of the document was to assist in anticipated litigation.

Conclusion and Recommendations

The work-product doctrine, while not absolute, allows an attorney a certain level of autonomy regarding the mental impressions, conclusions, opinions, and legal theories surrounding a case. Not all documents relied upon by an attorney in forming their legal theories will be afforded an absolute privilege, however. It is therefore imperative that business entities and individuals involved in litigation discuss the work-product doctrine with their counsel.

The contents of this piece are not legal advice, and this piece does not create an attorney-client relationship. Brad Liddell can be contacted at 801-531-2000 or brad-liddell@rbmn.com. Or visit https://www.richardsbrandt.com/practice-areas/utah/litigation-attorneys/

The Work-product Doctrine: Application to Documents Relied on and Prepared by Business Entities’ Internal Investigations

February 2016

Introduction

As litigation becomes more complex and as businesses become more sophisticated, issues begin to arise as to what documents and materials are afforded protection. For example, in construction disputes, the issue of causation is typically complex. Parties often will hire third-party consultants or engage in their own internal investigation into the issues presented. If these investigations are made at the request of a party’s attorney, the issue of work-product is less pronounced. However, where a business entity investigates and produces internal reports either before hiring an attorney or without the explicit direction of their attorney, the documents and materials relied upon and prepared may not be afforded any protection. This article discusses the applicability of the work-product doctrine to documents and materials relied upon and prepared by business entities’ internal investigation.

Utah Work-product Generally

The work-product doctrine is a judicially created doctrine now codified in Utah Rule of Civil Procedure 26(b)(5).[1]

Business Entities’ Internally Prepared Documents

Documents and materials prepared by a party may be afforded work-product protection, provided that the documents and materials were prepared in anticipation of litigation. Attorney involvement in a client’s preparation of documents and materials is only a factor to be weighed in the work-product analysis. The courts must look to the primary purpose of the client-prepared documents or materials in order to determine if the work-product privilege may be afforded. Gold Standard v. American Barrick Resources Corp., 805 P.2d 164, 168 (Utah 1990). Thus, client-prepared documents without the request of counsel do not categorically preclude the work-product privilege.[2]

In the 1990 Utah Supreme Court case Gold Standard v. American Barrick Resources Corp, Gold Standard challenged the assertion that certain memoranda prepared by Getty Oil were work-product. The Getty Oil memoranda were prepared two and a half years before a complaint by management-level employees without the involvement of counsel. Gold Standard argued that the memoranda cannot be treated as work-product because there was no attorney involvement. The court disagreed and stated that the rule in Utah is that “attorney involvement is only one factor to be weighed in determining the applicability of the work-product privilege. The fact that no attorney was involved may suggest that a document was prepared in the ordinary course of business and not in anticipation of litigation.” Id. at 170. The Utah Supreme Court stated that “an inquiry to determine whether a document was prepared in anticipation of litigation should focus on the ‘primary motivating purpose behind the creation of the document.’ If the primary purpose behind the creation of the document is not to assist in pending or impending litigation, then work-product protection is not justified.” Id. Further, “the mere possibility that litigation may occur or even the mere fact that litigation does eventually ensue is insufficient to cloak materials with the mantle of work-product protection.” Id. at 169. “If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting report is producible in civil pretrial discovery.” Id. at 171 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). Thus, the court held that the memoranda were not work-product as “they were not prepared by an attorney or at the request of an attorney or by someone doing investigation at the request of an attorney; nor were they otherwise prepared to assist in litigation.” Id.

Therefore, for any business-prepared documents and materials to receive work-product protection, done without the assistance or request of an attorney, the documents and materials must be prepared with the purpose of assisting in an anticipated or actual litigation. Whether a document is prepared in anticipation of litigation is a question of fact to be determined on a case-by-case basis. See Askew v. Hardman, 918 P.2d 469, 475 (Utah 1996) (“whether a document prepared by an insurer is prepared in anticipation of litigation is a question of fact to be determined by the trial court on the basis of the evidence before it”).

Conclusion and Recommendations

While business-prepared documents and reports that were prepared in anticipation of litigation do not automatically shield those documents and reports, it does allow the business entities attorney to, at a minimum, attempt to protect work-product of the business entity. These potential situations would involve questions of fact, where the critical inquiry would be if the reports created were done so in anticipation of litigation and not in the ordinary course of business. If the subject documents or reports serves a dual purpose, i.e. a business purpose and a litigation purpose, then the claim of work-product will receive greater scrutiny. Therefore, it is a recommended best practice to engage an attorney as soon as a potential litigation is known. Where an attorney is involved and where the attorney directs the production of business-prepared documents there is a greater probability that those documents and reports receive work-product protection.

[1] For a more expansive discussion on the Work-Product Doctrine in Utah, please see a previous blog posting.
[2] Utah law seems to preclude documents that were prepared in the ordinary course of business if the primary purpose of the document was not to assist in anticipated litigation. “If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting report is producible in civil pretrial discovery.” Gold Standard, 805 P.2d at 171.

The contents of this piece are not legal advice, and this piece does not create an attorney-client relationship. Brad Liddell can be contacted at 801-531-2000 or brad-liddell@rbmn.com. Or visit https://www.richardsbrandt.com/practice-areas/utah/litigation-attorneys/

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