The new year, of course, is a time to reflect, to learn from events of the past year, and to contemplate how to improve personally and professionally in the upcoming year. Looking back, I've had a good year--I continue to love practicing law, I work with terrific clients and colleagues, and I learn new and interesting things almost every day. And, in 2010, part of that learning process has involved writing these columns and thinking constantly about what we can glean from the key cases, legislation and other events that shape what we as lawyers--and, in particular, you as in-house counsel--do every day. So for my end-of-year column, and using my earlier columns as a guide, here are a few take-aways from 2010 and tips for 2011.
Jealously protect privilege: Standards with respect to privilege and waiver are constantly evolving. In my first column, "Waiving (Goodbye to) Privilege Under Rule 502," I wrote about how a review of electronic data that once seemed defensible may now be too lax to prevent subject matter waiver. For 2011, in weighing the costs and benefits of a full-scale privilege review, keep in mind the growing number of cases refusing to accept arguments of "inadvertence"--and thus finding waiver--absent such a review. And for those of you working abroad, or communicating with in-house counsel outside the U.S., as I explained in "The Privileged Few," do not forget the European Court's decision in Akzo Nobel Chemicals finding that in-house counsel are not sufficiently independent for the attorney-client privilege to attach to their communications.