GC Forwards Outside Counsel’s Email to PR Consultant—Waives Privilege

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…

Privilege Covers In-House Lawyer’s (and Non-Lawyers’) Review of Employee-Termination Decision

In an employment-discrimination case, the SDNY ruled that the attorney–client privilege precluded depositions of a company’s Termination Review Committee members, which included an in-house lawyer.  The privilege applied even though the Committee included two non-lawyers.  Fletcher v. ABM Building Value, 2017 WL 1536059 (SDNY Apr. 18, 2017).  You may read the decision here.

Background

ABM Building Value maintains a committee—ominously named the “Termination Review Committee”—that evaluates managers’ employee-termination decisions before the company carries out a termination. Following its review, the TRC, composed of one in-house lawyer and two non-lawyers, provides the company with advice concerning any risks associated with the termination. More…

In-House Counsel Fails to Prove Privilege, Loses Quest to Seal Emails & Notes

Situations arise where a party files privileged communications to support a dispositive motion.  But filing privileged documents raises waiver concerns, so the filing party seeks to seal those documents to prevent third-party access.  The question arises whether policies underlying the attorney–client privilege overcome citizens’ common-law and First Amendment rights of access to publicly filed documents.

In Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 2017 WL 1653608 (NDNY Apr. 26, 2017), available here, the USDC NDNY indicated that the privilege is a “higher value” that may rebut the common-law and FA presumption of access.  So, the court sealed the privileged communications, right? More…