This article originally appeared in the April 2013 Business Litigation Committee newsletter.
IN THE CURRENT electronic era, one of the substantial challenges facing defense lawyers is protecting written communications involving corporate counsel. In many companies, corporate counsel are now often part of the business management team, no longer only relegated to providing legal advice when asked to do so. Frequently, legal department attorneys are located with the business unit and are actively engaged with company executives and product managers in both legal aspects of the business and day-to-day business decisions. In fact, company titles for in-house lawyers sound like those of executives rather than lawyers, including Executive Vice-President, Chief Compliance Officer, Senior Vice-President, Chief Privacy Officer or Corporate Secretary. These positions bring our company lawyers directly into the cross-hairs of business litigation involving company decisions ranging from intellectual property and contract disputes to product liability and environmental contamination matters.
The various scenarios raise interesting factual questions for the traditional protections afforded to clients in the attorney-client relationship, particularly when it comes to assertion of the attorney-client privilege or attorney work product protection. This sacrosanct principle is "the oldest of the privileges for confidential communications known to the common law." (1) As all are aware, with certain exceptions, the privilege protects against disclosure of confidential communications between attorney and client within the context of seeking legal advice from a lawyer. The privilege necessarily encourages candid and open conversations between clients and their attorneys, allowing attorneys to more effectively represent their clients' interests by understanding the inner-most workings of company operations, errors made in judgment, discussions surrounding correction of problems and the liabilities that might flow from those decisions, and issues relating to damage control. These kinds of lawyer-related communications likely would be deemed relevant to any litigation concerning such issues and these communications are often accomplished electronically and become central to discovery disputes when placed on a privilege log.
Discoverability of these written communications is challenged through motion practice with the communications initially described generally along with the names of those sending, receiving and copied. The object of the defense is to keep these communications from being produced, even for review by the trial judge or magistrate judge or discovery master. To do so, defense lawyers must have detailed substantive knowledge of the communications, the electronic history of the communications, the inter-relationship between those involved in the communications, particularly the lawyers, and the motivations for the communications. Since "It]he burden of establishing the existence of the privilege is on the person asserting it," (2) it will be necessary to prepare affidavits from those involved explaining the factual basis for assertion of the privilege, so that those making the legal decision understand how and whether the privilege or protection comes into play.
For the most part, since outside lawyers are invariably consulted for legal advice, they rarely will be asked to disclose information provided to them by clients, and since the communication is almost always protected, we will not address outside counsel in this article. (3) The greater challenge comes when in house counsel are involved because those seeking the communications argue that the privilege is inapplicable or waived and cannot shield them from disclosure. To be sure, courts acknowledge that "the need to apply [the attorney-client] privilege cautiously and narrowly is heightened in the case of corporate staff counsel, lest the mere participation of an attorney be used to seal off disclosure. …