The Role of the Records Manager in Preserving Privileged and Confidential Communications

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The Role of the Records Manager in Preserving Privileged and Confidential Communications

Some of the most important business records reflect privileged communications and contain confidential information.

This article will address the attorney-client privilege and trade secret protection in the context of a records management program.

The article will cover: . the relevance of privileged and confidential document concepts to the records manager; . a legal overview of privileged and confidential communications; . the scope of attorney-client and trade secret documentation; . the types of documents and document labels; . document filing and circulation practices; and . document retention practices.

THE RELEVANCE OF

PRIVILEGED AND

CONFIDENTIAL DOCUMENT

CONCEPTS TO THE RECORDS

MANAGER

The legal concepts governing attorney-client and trade secret documents are important to the records manager for several reasons.

First, the records manager with responsibility to establish and monitor corporate records systems is in a unique position to build system features to accommodate and protect privileged and confidential documents.

Second, records managers are aware of the full scope and detail of a company's documents. This enables them to have a good perspective of how these documents are filed, circulated, and retained--all important aspects of protecting privileged and confidential classes of records.

Third, records managers often work with lawyers in day-to-day records matters and in litigation, or potential litigation, affecting the company. The records manager may, for example, provide the first level of document review (and perhaps the only thorough review) in connection with litigation document production requests or investigative agency requests for information. Therefore, the records manager should understand the legal principles relating to critical classes of documents, including privileged and confidential records.

A LEGAL OVERVIEW OF

PRIVILEGED AND

CONFIDENTIAL

COMMUNICATIONS Attorney-Client Privilege

The corporate attorney-client privilege is established if the following elements are present: . a communication (oral or written); . between a corporate employee; . and a corporate lawyer (licensed to practice and acting as an attorney); . about a matter within the scope of the employee's corporate duties (not personal or outside the employment); . in order to obtain legal advice about the matter in question; and . the communications are confidential (no non-essential parties involved).(1)

For records management purposes the key points are that an attorney-client privileged communication is typically a written record and is confidential in nature.(2) Trade Secrets

Trade secrets are most succinctly defined as information used in a business which gives one an advantage over another who does not know or use it.(3)

Several factors are considered in determining whether something is a trade secret: . the extent to which the information is known outside the business; . the extent to which the information is known by those in the business; . the measures taken to preserve the secrecy of the information; . the value of the information to the owner and to the competition; . The amount of effort and money spent to develop the information; and . the ease or difficulty with which the information could be properly acquired or duplicated by others.(4)

For records managers the key points are the secrecy aspect and the extent to which the information is known by those inside and outside the business.

THE SCOPE OF ATTORNEY-CLIENT

AND TRADE SECRET

DOCUMENTATION

It is important to recognize at the outset that attorney-client and trade secret documents are not limited to narrow enclaves within a company. …