The age-old privilege issue of an in-house lawyer providing business or legal advice has once again reared its head. Marriott’s legal department provided analysis and advice into the company’s strategic-plan memorandum, but a federal court ruled that the privilege did not protect the lawyer-drafted sections from discovery. RCHFU, LLC v. Marriott Vacations Worldwide Corp., 2018 WL 3055774 (D. Colo. May 23, 2018). You may read the decision here.
This case raises issues of legal standards and practical application, so let’s explore it.
Strategic Plan Memorandum
Marriott Vacation Club’s COO and its Senior VP sent a memorandum, titled “Ritz-Carlton Destination Club Proposed Strategic Plan,” to the Corporate Growth Committee. On the surface, this document seems purely business related with no privilege protection. While its confidentiality remained intact, the memo contains no privilege-related notices or alerts, and no lawyer appears to have written or received it.
But let’s take a closer look.
Business Advice or Legal Advice?
Marriott’s Vice-President and Senior Counsel submitted a sworn declaration, available here, stating that More…
In-House lawyers often assemble a team of specialists to handle knotty disputes that have the potential to spiral out of control. The team almost certainly includes outside counsel, but also forensic investigators, accountants, other consulting experts, or public-relations professionals.
As the dispute evolves, email communications among this team increase. And even where the emails involve in-house and outside counsel, the potential for privilege waiver also increases. In a long-running dispute involving the business of healthcare, a recent court decision illustrates the corporate attorney–client privilege’s fragility when a team’s lawyers share legal advice with the team’s non-lawyers. More…
The third-party litigation financing industry continues to grow, with Burford Capital’s December 2016 merger with Gerchen Keller Capital serving as the most recent indication. Read Above the Law’s story on the merger here.
Of course, litigation-financing firms must evaluate a company’s legal claims before agreeing to finance potential litigation. And this evaluation may include reviewing the company’s privileged communications and its lawyers’ work-product. The question arises: does disclosure of work-product or privileged information to a third-party litigation financing firm waive these protections? The court’s decision in Viamedia, Inc. v. Comcast Corp., 2017 WL 2834535 (June 30, 2017), available here, provides guidance. More…