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23 Litig. News 1 (1997-1998)

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LITIGATION NEWS
A PUIILICATION OF TIlE SEI'OIN OF LITIGATION - AMERICAN BAR ASSOCIATION • NOVEMIIER 1997 VOL. 23, NO. I

I 51!DE            :
THREE FOR FREE
Join a Section Committee
see insert
Depositions
,,.Dos*& Don'ts
I e-The basics that we often
,overlook.
. Page 3
 The rules of video
i.dcp.,.sitions.
,  'An argument for lawycrs
emaining hands on pre-
and post-depositions.
Page 3
Contingent Plans
- Court bolsters IRS challenges
to classification of contingent
workers.
Page 7
Jeopardizing the Case
- Court intcrprets civil penalty
proceeding to preclude later
criminal indictment under Fifth
Amendment.
Page 2
'Protecting the Privilege
, Third edition'ofa Section
staple on the attorney-client
privilege and work-product
I doctrine reviewed.
'Page 8
IEzclu~s Legal Publishing Sponsor

I   t a case whose dicla llay have
wider raniilications tltath its holding, the
D.C. Court of Appeals expressed grave
doubts that a constitutional right to
privacy it the nondisclosure of personal
information exists.
I American FItderaiut vf Go'run-
inwt Iniphlyeis v. Dealrtment (f ttls-
ing au Urban Deveo) ment, 118 F.3d
783 (D.C. Cir. 1997). the D.C. Circuit
overruled orders of a district court
enjoining two federal agencies frot
requiring specilic employees to answer
questions about their linancial histories
auld abuse of controlled substances.
Union representatives challenged the
use of such questions by the Department
of Ilousing and Urban Development
(I UI)) Uand the Department of Defense
(DOD). the district court enjoined
II U nt) aid  O)D front collecting such
information on the grounds that it vio-
lated the etipoyces' conslitutional right
to keep private information with which
the government does Uot have : legiti-
Itlate concern.
At the outset of its analysis, the D.C.
Court of Appeals quest ioned the very
existence of such a right. The court coi-

I, N. I)Dwto BImtSCii
1,IIIAITION NEWs A VSIucIAir it:1 linl
inented til the Delplhic manner in
which the U.S. Suprcne Court has dis-
cussed the issue without ever deciding
it. The court noted that one reading of
the cases cited by the Suprenc Court
in constitutional privacy cases is that
the Constitution prolects against llanda-
tory disclosure only where it threatens
at particularized right such as the associ-
ational rights protected by the First
Amendment.

From the Mouths of Babes:

Dealiug with the Chi
Children pose unique challeng
ItVSUSAN J. ltVCK.
LIF If AI'I(N NEWs AsOIAIE I

A re chilren so pure at heart that
they are hicaipable of telling a falsehood
oil the witness stand? Or, are they so
inalleable and iipressioiable that judges
anid juries should view their testimoly
with a high degree of skeplicism?
Isychiatrists, psychologists, and other
experts have beei grappling with these

lid Wituess
esfor litigators
R
Ellrrolt
of child aibuse and neglect.
defending against or prose
abuse clim, whether in a
relations dispute or a critni
liids herself adrift in at sea
scientilic data and evidenli
cernitig the child's testinio
Sifting through collicti

The D.C. Court ol Appeals chastised
other courts that have interred broad
constitutioal righlts tot expressly stated
in the Constitution, noting that the Sec-
ond, Third, and Fourth Circuits have all
recognized a constitutional right to pri-
vacy for al least sonic persoial itfonla-
tion. The court stated that i telling fail-
tire in such cases is the other court's
failure to cite a specilic constitutial
(P'ease filtit to pallge (-Iprivrly)

clucstious for  part of a litigator's challenge in every
years, often    case, hut the stakes in a child abuse
in the context  case are exceedingly high. If the
ofenotion-     allegations are false but the judge
ally charged    or jury finds the child's testimony
cases involv-   persuasive, the accused may he sel
ing clais     to jail, and, if the accused is a parent,
A litigalor     haIrred front all contact with his
culiug a child   child, If the allegations are true hul
civil dlomestic  the judge or jury ioes not credit the
inal trial, often  child's testimony, the child may be
of conflicting  returned to an enviroiment that will
ary rules coil-  undoubtedly scar hiln for life.
uly.               Children have Io be aipproached
nIg evidence is     ('lease urn to pag' 4-Child)

D.C. Circuit Questions Employce Privacy Rights
U.S. agencies' inquiries into eiployees'finances and drug use held not to violate Constitution

Task Force on the Independent Lawyer
Lawyers Urged Not to Serve on Client Boards
BY )AVIn C. WItK4S
I,Tmii Us N oms AsoilA F: 1114
What if you serve on your client's board of directors and are called in to parlic-
ipate in the decision of whethcr or not the company should commence litigation?
The decision will signilicantly affect the amount of fees your law finn may gen-
crate from this client. If you participate in the decision you might later be ac-
cused of self-dcalig, to the possible detriment of your client. If you abstain
from the discussion, you deprive the corporation of the bcnelil of your opinion,
which is one of the very reasons you were chosen to serve.
This is one of many problematic scenarios faced by lawyers who sit on client
boards. Such problems arc highlighted in the recently completed report, The
(l'th'ase turn to page (--ndpendhnt)

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