In-house counsel’s dual legal and business responsibilities can frequently create issues when assessing the extent of attorney-client privilege that applies to internal documents. With in-house counsel participating in more strategic and business-focused roles, old assumptions about privilege and communications with other corporate employees face new challenges. At the same time, mergers, restructuring and other corporate transitions may result in multiple entities or individuals claiming the right to attorney-client privilege or arguing that it’s been waived.
Two disputes this past year highlight how trial and appellate courts can take different views of privilege than those used within an organization. These decisions provide an opportunity for all in-house counsel to reassess current privilege practices and procedures.