Tag: litigation

Is Your Business Litigation Proof?

The heading of this blog is a misnomer. There is no such thing as being litigation proof. Anyone can sue your business for any reason and meritorious or not, you will still have to defend the claim.

Still, there are many important steps a business can and should take to reduce its exposure and put itself in an advantageous position in the event a lawsuit is filed. Here are two simple actions that every business, large and small, should take in order to be a little bit more secure in today’s volatile world.

1. An Updated Employee Handbook

Employee handbooks set forth company policy for all employees to follow. Handbooks are useful reference materials that employees can rely upon to guide their day to day activities. They are also evidence of a company’s practices that can be introduced in the event of a lawsuit.

As a business grows, it should be mindful that different laws will apply to it. For example, once a business employs 15 employees, that business is now subject to the provisions of the Americans with Disabilities Act (“ADA”). Once that happens, an employee handbook should be modified to include language related to the reasonable accommodations that the business will make to comply with the ADA. If an employee with a disability were to file a claim under the ADA, a company with a handbook containing reasonable accommodation language would have a stronger argument that its practice is to comply with the ADA, than a company without such a policy in its handbook.

Also, business owners must be mindful that the law is constantly changing. For example, Illinois just enacted a law that requires an employee’s existing sick leave be granted to employees not only while they are sick, but also to care for sick family members (read more about that law here – http://lgattorneys.com/illinois-employee-sick-leave-act). Illinois businesses should amend their handbooks to reflect the change or discuss the pros and cons of moving away from sick leave/vacation time to paid time off that does not differentiate between sick leave and vacation time.

2. Record Retention Policy

If a company becomes involved in litigation, regardless of the issue, there is going to be a records request for all relevant documents in anyway related to the underlying lawsuit. This often involves emails and other electronic communications.

Having a records retention policy is important for several reasons. First, it ensures that all documents are kept for the optimal amount of time to conduct business without clogging servers or storage spaces. Second, it ensures that a company isn’t holding any documents for longer than legally required. Should a business be subject to a records request, a business is required to produce the documents in its possession. A plaintiff in a suit cannot use a document against you if you do not have it (and are not legally required to have kept it). Third, there are many record retention laws specific to different areas of business. A record retention policy can make sure a business does not violate the law by getting rid of documents too soon.

It is important that the business in question follow its policy universally and not on an ad hoc basis. As long as there is not a litigation hold in place requiring a company to keep all related records, then the company is free to follow its record retention policy without inadvertently destroying evidence and leading to a claim of evidence spoliation.

By consulting with an attorney and preparing an employee handbook and records retention policy, a business can take important first steps toward avoiding litigation, or at least being better placed to withstand a lawsuit if one comes its way.

For more information about developing an employee handbook or record retention policy appropriate for your business, please contact:

Robert Cooper at:

rcooper@lgattorneys.com or 312-368-0100.

Illinois Adopts Uniform Interstate Depositions and Discovery Act

On July 20, 2015, Governor Rauner signed into law a bill that enacts the Uniform Interstate Depositions and Discovery Act (the “Act”). The Act reduces the costs and simplifies the process of litigation in out of state cases where it is necessary to engage in discovery, such as the production of documents or taking of depositions, of a party or parties that are located in the State of Illinois. The Act has been adopted in thirty-eight (38) states and has been introduced for consideration by the legislature in several others.

Prior to the adoption of the Act, an out of state litigant seeking to issue a subpoena to an individual or entity in Illinois was required to file a petition with the Illinois court located in the county where the individual or entity resides, is employed, or transacts business. For example, if a lawsuit pending in Wisconsin, involving a car accident in Wisconsin, was witnessed by an individual who resides in Cook County, Illinois, the parties to the lawsuit would be required to issue a subpoena in Wisconsin, institute an action and file a petition with the Cook County Circuit Court, obtain an order from the Cook County court, and then issue a subpoena in Illinois for testimony of the witness.

Under the Act, this process is streamlined.  An out of state litigant seeking to subpoena a witness in Illinois must simply submit a subpoena issued in another state to the clerk of the court in Illinois, who will then issue an Illinois subpoena for service on the witness in Illinois. Although the Act simplifies the procedure of obtaining a subpoena in an out of state case, subpoenas issued in Illinois are still governed by the Illinois Supreme Court Rules and Illinois state law, including rules regarding the service of subpoenas, motions to quash subpoenas, and the taking of depositions.

If you have any questions regarding the State of Illinois’ adoption of the Uniform Interstate Depositions and Discovery Act, please contact:

Kristen E. O’Neill at:

koneill@lgattorneys.com or 312-368-0100

Attention Condominium Associations, Condominium Unit Owners, and Condominium Board Members!

The Illinois Condominium Property Act (the “Act”) provides that all meetings of condominium board members are to be held in person and open to all unit owners, with very limited exceptions.

In fact, the Act requires that a condominium association’s bylaws must provide:

“[M]eetings of the board of managers shall be open to any unit owner, except for the portion of any meeting held (i) to discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent, (ii) to consider information regarding appointment, employment or dismissal of an employee, or (iii) to discuss violations of rules and regulations of the association or a unit owner’s unpaid share of common expenses, that any vote on these matters shall be taken at a meeting or portion thereof open to any unit owner.” 765 ILCS 605/18(a)(9) (West 2004).

The Illinois Appellate Court, in the recent decision of Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2014 IL App (1st) 111290 (2014), held that the board of directors of the condominium association violated the Act by conducting business at closed meetings, including discussion regarding association matters and soliciting input by email, canvassing board members by phone and deciding on matters in closed “working” sessions prior to presentation of the matters for a vote in an open meeting, and that such closed working or executive sessions, which are not open to unit holders, are impermissible. The facts of Palm may serve as a good guide to condominium board members and unit owners alike – to determine what may constitute a closed working or executive session.

Condominium associations should review both their bylaws and their actions to ensure compliance with the Illinois Condominium Property Act and to avoid the practice of conducting closed working or executive sessions, which are not made open to unit holders. If you have any questions regarding condominium board procedures, please contact:

Jeffrey M. Galkin at:

(312) 368-0100 / jgalkin@lgattorneys.com


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