Legal privilege and the challenge of technology

Are modern tech tools putting your company’s privilege in danger?

Legal privilege, or attorney-client privilege, is a principle well established in common law countries, especially in Canada and the U.S. However, transnational business, new work methods and recent financial scandals have altered its importance. This three-article series will clarify where we stand today with respect to the protection of legal privilege by focusing on the following issues: Legal privilege in the wake of corporate scandals; legal privilege applied to modern litigation, with an emphasis on e-discovery; and the influence and impact of Europe’s views on legal privilege. Read part one here.

According to the express waiver theory, privilege can only be waived by the client’s express consent. Though the principle seems to allow for more flexibility, it is reasonable to consider that when the client took judicious precautions to preserve the confidentiality of his communications with his lawyer, the circumstances surrounding the exchanges should not likely have an impact on the right to invoke the privileged character of the communication.

Advancing electronic technology means a constantly increasing volume of data which needs to be dealt with. An increasing amount of information undoubtedly multiplies the risks of inadvertent disclosure of privileged information. As such, privilege reviews now necessitate being even more meticulous, which in turn requires a greater investment in both human and financial resources.

Contributing Author

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Anne-Laure Broeks

Anne-Laure Broeks obtained her master’s degree in international business law in France. Upon completing her studies, she worked as legal counsel in France, the United...

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