The Federal District Court for the Eastern District of New York has stated with clarity why corporate entities should retain counsel as soon as the prospect of litigation becomes apparent. In a poignant decision in Geller v North Shore Long Island Jewish Health System the District Court gives corporations and business entities not merely food for thought but rather clear guidance and a road map for handling internal investigations conducted in anticipation of litigation, if they want to shield the investigation from discovery during litigation.

The court in Geller ruled that the work product of an internal investigation conducted by a company’s corporate compliance officer is protected by the attorney/client privilege and attorney work product doctrine if the company had retained counsel prior to the investigation or work at issue being created.

In light of the precedent set by the court companies that retain counsel from the moment they anticipate litigation could pursue robust internal investigation with the confidence that the documents, interviews, and things obtained during the investigation would be shielded by the attorney/client privilege and attorney work product doctrine. On the other hand those who conduct the internal investigation before retaining counsel would NOT get this protection.

The attorney/client privilege protects communication between attorneys and their clients while the work product doctrine protects materials prepared by agents for attorneys as well as those prepared by the attorney himself. Costabile v. Westchester, New York, 254 F.R.D. 160, 164 (S.D.N.Y. 2008). A party invoking   the attorney-client privilege must demonstrate that there was "(1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice." In re Cnty. of Erie, 473 F.3d at 419. See United States v. Adlman, 68 F.3d 1495, 1500 (2d Cir. 1995).

In contrast to the attorney-client privilege, the attorney work product doctrine does not require that the documents be prepared at the behest of counsel, only that they be prepared 'because of the prospect of litigation.

The crux of the dispute in Geller was whether the portion of an investigation conducted by the defendant’s Compliance Officer after counsel was retained is protected by the attorney-client and/or work product privileges. In the Gucci Am., Inc. v. Guess, Inc., 271 F.R.D. 58, 71 (S.D.N.Y. 2010) the Federal District Court for The Southern District of New York pointed out that an investigation conducted by an agent of the attorney, such as 'gathering statements from employees, clearly fall within the attorney-client rubric.'" Gucci Am., Inc. v. Guess, Inc., 271 F.R.D. 58, 71 (S.D.N.Y. 2010). Thus, courts have frequently extended the attorney-client privilege to communications made to investigators who have provided necessary assistance to attorneys.

Geller is a case involving allegation of sexual harassment. Plaintiffs, Debra Geller and her husband, Gregg Geller, commenced the action pursuant to Title VII, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law, N.Y. Executive Law § 296 et seq., as well as New York   common law. They allege that Debra Geller was sexually harassed and retaliated against by defendants, North Shore Long Island Jewish Health System ("LIJ") and her supervisor, Anthony DiFilippi, during the course of her employment with LIJ. She complained to LIJ which opened an investigation conducted by its Compliance Officer Kim Greene ("Greene").

Greene conducted part of the investigation before the company retained counsel. The remainder of the investigation was conducted after counsel was retained. The Plaintiffs sought to compel production of the documents, and interview from Greene’s investigation for the period after counsel was retained. The Court determined that Greene acted as an agent of defense counsel during her investigation after counsel was retained. As such, her interviews of LIJ employees and any documents she created regarding those interviews are privileged.

In light of established precedents extending the attorney/client privilege and attorney work product doctrine to investigations conducted by Corporate Compliance Officers, companies stand to benefit significantly from retaining counsel before conducting an internal investigation of a complaint in anticipation of litigation even if counsel is NOT directly involved in the investigation.

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Vivian M Williams, Esq., LL.M is a New York attorney who practices in state and federal courts. He can be reached at 212-561-5312 or email vwilliams@vmwassociates.com

New York, NY- I am sure you know of several persons who use the address of a friend, or relative, or an old address when registering a motor vehicle so that they could get cheap insurance. Usually, such address is in another county or state where motor vehicle insurance is considerably cheaper. This practice results in an address on file with the Department of Motor Vehicles (DMV) that is NOT the actual place business or dwelling or usual place of abode of the registrant. It is a dangerous practice that could ruin your life.

CAUTION! Having the Wrong Address on File at DMV is Dangerous

It is dangerous to have an incorrect address on file with DMV because anyone could start any bogus law suit against you, serve the papers on you at the address you have on file with DMV and obtain a default judgment against you for hundreds of thousands or millions of dollars without you knowing, and you may NOT be able to vacate that judgment. What is even worse is the fact that the judgment could be executed against you without you even knowing of its existence and execution because the notice of execution could be served on you at the address on file with DMV.

The implications and consequences are unimaginable. If you have property such as vehicle or real estate, it could be sold to satisfy the judgment and you may only be aware of it when the new owner knocks on your door or you are served with eviction papers.

In New York CPLR Section 308 requires service of court papers on a natural person at the actual place of business, dwelling place or usual place of abode of the person to be served. Therefore, usually, when a default judgment is obtained against a person and service of the court papers was NOT made at the actual place of business, dwelling place or usual place of abode the default judgment could be vacated and usually it is unenforceable because the court that issued the judgment would NOT have jurisdiction or authority to issue that judgment.

 The New York Supreme Court, Appellate Division, Second Department has however, ruled that if the defendant was served at the address on file with DMV he or she should be estopped from raising a claim of defective service. Because the person who has allowed an incorrect address to be on file with DMV cannot challenge the defective service made to that address, he or she may be stuck with the judgment and the consequences. (See Kalamadeen v. Singh, 63 A.D.3d 1007 882 N.Y.S.2d 437 [2nd Dept. 2009]). The law thus, places a burden on the person filing an address with DMV to ensure that the correct address is on file at ALL times.

The Second Department has taken this harsh approach because VTL 505(5) requires every licensee to notify the Commission of the DMV within 10 day of any change in residence. In Kalamadeen the court ruled that anyone who fails to comply with that provision will be estopped from challenging service at the former address. 

In Kalamadeen the Plaintiff and the Defendant were involved in an auto accident. Despite the fact that the Defendant listed two addresses on the police report that were different from the address on file at DMV, Plaintiff went ahead and served the Defendant at the address listed with DMV and obtained a default judgment.

Upon discovering the judgment against him, defendant Singh moved to vacate it, contending that at the time service allegedly was made he did not live at the address where process was affixed and mailed, he did not receive process, and that the subject accident was the plaintiff's fault.

At a hearing to determine validity of serevicethe hearing, the process server admitted that on the fourth occasion that he attempted to personally deliver the summons and complaint to the defendant at the defendant's address then on record with the DMV, he was told by the owner of the premises that the defendant had moved from that address several months earlier. Nevertheless, the process server affixed the summons and complaint to the door at that address and mailed process to that address.

The case went all the way up to the Appellate Division where it was held, that despite Plaintiff’s knowledge that the address on file with DMV was no longer in use by Defendant, the default should NOT be vacated and the judgment was enforceable against Singh.

Ensure Accurate Information is on File with DMV

It is imperative that a registrant NOT only files his or her correct address with DMV but also continuously maintain an accurate address on file with DMV. An important lesson from the Singh case is when you change your address you need to update the record at DMV. If you fail to do this you may wake up one morning with someone at your door claiming to be the new owner of her home and that they bought your million dollar house at an auction for next to nothing.

While the temptation to file false information in a forum shopping attempt to obtain cheap insurance may be high, the consequences could be catastrophic. What is also equally catastrophic is the failure to promptly notify DMV of a change in your address.

  So the Second Circuit Court of Appeals, New Jersey District Court and other federal courts have ruled that persons who are in the U.S illegally or without work authorization could sue for lost wages in personal injury law suits. Would or should persons who are illegally in the United States raise such claims in the courts? While the courts have given the green light there are other blinking red lights that the illegal immigrant worker must pay attention to before filing a law suit asserting lost wages claims.

1. Lost Wages Claims Could Result in Criminal Prosecution by The IRS

In many instances, illegal immigrant do NOT file tax returns while working and obtaining income in the U.S. Whenever lost wages claims are made several years of tax returns would be the subject of discovery. The illegal immigrant would therefore be subject to discovery demands for tax returns. Further, the employment history of the plaintiff would be subject to discovery.

The Plaintiff would therefore find himself or herself in a situation were he or she asserts under the penalty of perjury, that he or she in fact worked and earned income from employment in the United States. With this admission, if the alien was NOT filing accurate tax returns and paying taxes, the illegal immigrant worker  would have provided evidence for criminal prosecution against him or her. If the sum is significant the IRS may take an active interest  in the case.

2. Criminal Prosecution for Fraud May Lead to Deportation

If the illegal immigrant is prosecuted for tax fraud deportation may most certainly follow. Even if there is no conviction in the tax fraud case, the Department of Homeland Security may serve the Notice to Appear which formally commences removal proceedings.

3. Deportation Proceedinngs May Commence Even if There is No Criminal Charges for Tax Evasion

The immigration status of the Plaintiff would be a central part of the civil litigation. This increases the risk of the Deparment of Homeland Security getting involved with removal proceedings against the alien.

 Its a Judgment Call

Surely, the illegal immigrant is caught between a rock and very hard place. It should be noted that the fact a claim or  cause of action is available doesn't mean that the litigant should adopt the kitchen sink approach and sue everyone and assert every possible claim.  In fact, the problems that may develop from discovery pertaining to lost wages claims could distract and often derail other viable causes of action. It is common for illegal immigrants who assert lost wages claims to abandon these claims during the course of litigation. This abandonment however, may come after the alien has already exposed himself or herself to other serious legal problems.

One could argue that the most prudent approach is to carefully review the totality of circumstances before filing a lost wages claim. This approach may be useful NOT only for illegal immigrants but anyone who wishes to assert a lost wages claim.

The risk of criminal prosecution for tax fraud is NOT a danger only to illegal immigrants. Anyone who has serious problems with filing taxes and the accuracy of taxes filed may need to think twice about filing lost wages claims. Lost wages claims exposes the plaintiff's financial records in ways that would open the door for serious legal problems if plaintiff's financial records are NOT in order.

By: Vivian M. Williams, Esq., LL.M

The issue whether the death of U.S. citizen within two years of marriage to a foreign national termiantes a pending petition for permanent reidence filed by the U.S. citizen for his or her alien spouse.

The various states that make of the United States are grouped into what is called circuits for purposes of litigation in federal courts. The various circuit courts answer this question differently. The United State Supreme Court is the court that review difference between the circuits and has the final word.

The First Circuit Court of Appeals has issued a decision that could no doubt push the issue, closer to the U.S. Supreme. The First Circuit held that the alien spouse, whose citizen-spouse dies within the two year period of the marriage may still proceed to have his or her status adjusted. That means, the petition does NOT terminate.

There is a split in the Circuit Courts of Appeals that have decided this issue. The Third Circuit has held that the death of the citizen-spouse within two years of the marriage automatically terminates the petition and forfeits the application for adjustment of status. While First Circuit follows the Six and Ninth Circuits in ruling that death within two years of the marriage does NOT terminate the marriage.

Really, the conflict between the circuits is based on whether a person continues to be a spouse after the death of his or her partner. The answer may seem simple but the Third Circuit says death terminates that relationship while the First, Six, and Ninth Circuits say it is NOT terminated by death. The Immigration and Nationality Act permits a U.S. citizen to file an I-130 petition for his or her foreign national spouse to become a permanent resident of the U.S. If the petition is approved and the spouse foreign-national spouse is in the U.S., he or she may then apply for an adjustment of status by filing an I-485 application. The relief is available to the foreign national spouse on the basis of him or her being an immediate family member of the U.S. citizen.

USCIS must conduct an investigation when adjudicating the I-130 petition to determine that "the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b)." 8 U.S.C. § 1154(b). If the facts in the petition are true and the applicant is an "immediate relative," USCIS shall approve the petition. Thus, at the time of conducting the investigation for adjustment of status if the U.S. citizen spouse has died and the marrige is NOT yet two years old the governments argues that the beneficiary is NOT eligible for adjustment of status.

There have been many instances where the U.S. citizen spouse dies before the adjustment of the I-485 adjustment of status application is approved so the courts have had to deal with the question whether the death terminates the application and eligibility for the benefit. The answer to this question turns on the definition of spouse.

Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009) the First Circuit states: "... the issue here is whether Mrs. Taing retained her status as a "spouse" after her husband died in order 'for her to qualify as an "immediate relative" under the INA. The government argues that the definition of "spouse" in federal law and the common, ordinary meaning of the term "spouse" compel the conclusion that Mrs. Taing ceased to be a "spouse," and hence an "immediate relative," when Mr. Taing died. We disagree with both arguments."

The First Circuit held that the term spouse as used in the INA includes a surviving spouse who is a beneficiary of an I-130 petition filed before the death of the U.S. citizen spouse, so that if the U.S. citizen spouse dies within two-years of the marriage the surviving foreign-national spouse may proceed to adjust his her status to that of lawful permanent resident.

In the Third Circuit Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009), Osserritta Robinson ("Robinson"), a citizen and national of Jamaica, entered the United States as an non-immigrant visitor on a B-2 visa and married Louis Robinson ("Mr. Robinson"), a United States citizen, in February 2003. In March 2003, Mr. Robinson filed a Petition for Alien Relative ("I-130 petition") for an immigrant visa on behalf of his wife as an "immediate relative." At the same time, Robinson filed an I-485 application to adjust her immigration status to that of a lawful permanent resident ("LPR").

Robinson argues that she remained an "immediate relative" within the meaning of 8 U.S.C. § 1151(b)(2)(A)(i) after the death of her husband. The Government counters that Robinson is no longer a "spouse" eligible to be considered an "immediate relative" because she had not been married to her citizen spouse for two years at the time of his death. The Government reads the second sentence of section 1151(b)(2)(A)(i) as qualifying the term "spouse" in the first sentence of the section. Its arguments is that a spouse remains an "immediate relative" within the meaning of the INA after the death of his or her citizen spouse only if the couple had been married for two years at the time of the citizen's death. The Third Circuit agrees with this reasoning and therefore, Robinson's adjustment of status was denied.

Several other Circuit Court of Appeals have NOT ruled on this issue so it is still up in the air. As this point, whether a foreign-national whose spouse dies within two years of marraige with a pending I-130 petition could adjust his or her status may be a matter of in which State in the United States that person lives.

Mr. Robinson died on October 15, 2003, in the Staten Island Ferry accident. On October 15, 2005, the U.S. Citizenship and Immigration Services ("USCIS") informed Robinson that her I-130 petition had been automatically terminated upon the death of her husband.

Vivian M. Williams, Esq., LL.M is a New York State attorney admitted to practice in federal district courts in New York, the Second Cicruit Court of Appeals, and The United States Supreme Court.