In-House Counsel and Attorney-Client Privilege Protecting - - PowerPoint PPT Presentation

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In-House Counsel and Attorney-Client Privilege

Protecting Confidential Information in Business Communications,

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Protecting Confidential Information in Business Communications, Depositions and Litigation

A Live 90-Minute Teleconference/Webinar with Interactive Q&A

Today's panel features: Brian M. Martin, Senior Vice President and General Counsel, KLA-Tencor Corp, Milpitas, Calif. Kenneth E. McKay, Partner, Locke Lord Bissell & Liddell, Houston Mi h l B H P t M t M C k W lk & Rh d Phil d l hi

Q&

Michael B. Hayes, Partner, Montgomery McCracken Walker & Rhoads, Philadelphia

Tuesday, October 5, 2010 The conference begins at: The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 P ifi 10 am Pacific

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The Attorney-Client i il i h i d Privilege in the United States

Brian Martin General Counsel General Counsel KLA-Tencor, Corp. Brian Martin@kla tencor com Brian.Martin@kla-tencor.com

The Attorney Client The Attorney-Client Privilege

• The attorney-client privilege has been

described as "narrowly defined, riddled y f , with exceptions, and subject to continued criticism." United States v. Schwimmer, 892 , F.2d 237, 243 (2d Cir. 1989).

• Nowhere is its application more

Nowhere is its application more troublesome than in the corporate context.

The Attorney Client The Attorney-Client Privilege

• If a client consults with an attorney for the

purpose of obtaining legal assistance, all p p f g g , confidential communications with the client in furtherance of that end are protected by f f p y the attorney-client privilege.

– Client to lawyer for legal advice Client to lawye fo legal advice – Lawyer to client for legal advice

The Attorney Client The Attorney-Client Privilege

• (1) Where legal advice of any kind is sought

(2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in fid (5) b th li t (6) confidence (5) by the client (6) are protected (7) from disclosure by himself or by the legal advisor (8) unless the by the legal advisor (8) unless the protection is waived. 8 Wigmore, Evidence

• sec. 2292 (4th ed. 1995).
• sec. 2292 (4th ed. 1995).

The Attorney Client The Attorney-Client Privilege

• "In order for the privilege to attach, the

information must have been given with the f g expectation of confidentiality and for the purpose of obtaining legal as opposed to p p f g g pp business advise." People v. Belge, 399 N.Y.S. 2d 539, 540 (N.Y. App. Div. 1977). , ( pp )

The Policy Behind the Rule

• The privilege is intended to ensure full

disclosure by clients who feel safe confiding in their attorney. Only full and frank communications between clients and their tt ll tt t id attorneys allow attorneys to provide effective, expeditious and informed representation Additionally recognizing

• representation. Additionally, recognizing

the privilege encourages the public to seek early legal assistance. early legal assistance.

When Does the Privilege Apply?

• The privilege protection attaches to all

p g p communications of the client from the moment that the attorney is approached for the purpose of

• btaining legal assistance.
• The privilege applies regardless of

– Whether the attorney decides not to represent the client; – Whether the client decides not to retain the attorney; Wh th th lt d t t t t h b – Whether the person consulted turns out not to have been a licensed attorney.

The Privilege in the The Privilege in the Corporate Setting

• Applicability of privilege in corporate

setting finally settled by 1963. See, Radiant g f y y , Burners v. Amer. Gas Ass'n, 320 F. 2d 314 (7th Cir. 1963) (reversing district court's ( ) ( g ruling that the attorney client privilege was not applicable to a corporation). pp p )

In-House Counsel and Attorney- y Client Privilege: Business Advice vs. Legal Advice g

October 5, 2010

Ken McKay

Litigation Partner Locke Lord Bissell & Liddell LLP 600 Travis, Suite 2800 Houston Texas

Atlanta, Austin, Chicago, Dallas, Houston, London, Los Angeles, New Orleans, New York, Sacramento, San Francisco, Washington, DC

Houston, Texas (713) 226-1127 kmckay@lockelord.com

A Different Standard?

Courts have repeatedly held that there is no Courts have repeatedly held that there is no distinction between the standard to be li d f i h d t id l f applied for in-house and outside counsel for purposes of the attorney-client privilege.

S H C l i & Gl P d i l I 8 0 F S 2 (S D N Y 1 ) See Hertzog, Calamari & Gleason v. Prudential Ins., 850 F. Supp. 255 (S.D.N.Y. 1994); U.S. v. Mobil Corp., 149 F.R.D. 533 (N.D. Tex. 1993)

But there is a distinction, at least in application application.

13

But, Isn’t that a Double S d d? Standard?

Absolutely!

14

But, it’s also a fact of life… ,

15

Why is a different standard applied to in-house counsel? to in-house counsel?

Principally because in-house counsel often perform non- legal business functions within their organizations and h l i h i il l i di i i h h the law requires that privilege analysis distinguish the two Having attorneys serve in dual capacities is the most frequently-cited factor as a basis for q y denying a claim of privilege.

See Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1990); N.C. Elec. Membership

• Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 517 (M.D.N.C. 1986)

16

Satisfying the “Attorney” Requirement

• f the Attorney-Client Privilege
• f the Attorney-Client Privilege

General Rule: If an in-house counsel is acting in her capacity as an attorney, the attorney-client privilege applies. Where, however, counsel is acting as a business advisor or has

• nly limited involvement, the privilege does not apply.

"[T]he privilege is limited to confidential communications with an attorney acting in his professional legal capacity for the express purpose of securing legal advice As his professional legal capacity for the express purpose of securing legal advice. As a general rule, an attorney who serves a client in a business capacity may not assert the attorney-client privilege because of the lack of a confidential

• relationship. Thus, ordinary business advice is not protected."

Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1990). See also N.C. Elec. Membership

• Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986).

17

There is no Silver Bullet

No single factor is No single factor is dispositive in every case case.

See N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 516 (M.D.N.C. 1986) 18

Examples of Potentially “Non-Legal” Functions Performed by In-House Counsel Functions Performed by In House Counsel

– Conducting investigations Conducting investigations – Fact-gathering regarding issues that may later be the subject of litigation j g – Regulatory compliance issues – Matters concerning the functioning of the entity Matters concerning the functioning of the entity

See e.g. Giffin v. Smith, 688 S.W.2d 112 (Tex. 1985) (General counsel's communications found not to be privileged despite his role in corporate investigation because there found not to be privileged despite his role in corporate investigation because there was no evidence that the communication was confidential). 19

Dual Capacities p

In-house counsel routinely handle mixed business and legal functions, sometimes with dual titles such as – Corporate Secretary – Vice President Board Member – Board Member These are sometimes perceived to be capacities separate from their legal functions Apparently, an even higher standard is sometimes applied where such is the case: “[I] i i h h h i i f ll dl i il d “[I]n a situation where the author or recipient of allegedly privileged documents functions as a corporate manager as well as an attorney, efforts must include clear designation of those communications sent

• r received in his capacity as a legal advisor ”
• r received in his capacity as a legal advisor.

Hardy v. New York News, Inc., 114 F.R.D. 633, 644 (S.D.N.Y. 1987) 20

How Does an In-House Attorney Meet this Burden? Meet this Burden?

Court's finding in Hardy Court s finding in Hardy “Al h h f h d [ ] dd d “Although some of the documents [were] addressed to [in-house counsel], there was nothing to indicate h [h ] d i d f h that [he] requested or received any of the documents at issue, or the information contained i h i h i f l l d i d in them, in the capacity of a legal advisor and solely for the purpose of rendering advice to the i ” corporation.”

Hardy v. New York News, Inc., 114 F.R.D. 633, 644 (S.D.N.Y. 1987). 21

Applicable Test pp

The client’s communication must be for the primary or dominant purpose of soliciting legal, rather than business, advice.

See N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986); Teltron, Inc. v. Alexander, 132 F.R.D. 394, 396 (E.D. Pa. 1990) ("[must be able to] clearly demonstrate that the advice to be protected was given in a professional legal capacity."); U.S Postal Serv. V. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). 22

Factors to be Considered

• Is the subject “ordinary business activities”?

Whether the subject matter of the document is primarily business-oriented, such as documents discussing cost , g information, technical data, contract negotiations, delivery problems or lobbying efforts.

See Coleman v. Am. Broad. Cos., 106 F.R.D. 201, 205 (D.C. Cir. 1985) (concluding that communications between an attorney and another individual which relate to business, rather than legal matters, do not fall within the protection

• f the privilege.); N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986).

Stated differently, would the document have been prepared whether or not the attorney was sent a copy?

U.S Postal Serv. V. Phelps Dodge Ref. Corp., 852 F. Supp. 156, 163 (E.D.N.Y. 1994). 23

Factors to be Considered

• Do the documents specifically request legal
• Do the documents specifically request legal

advice or, if generated by counsel, reference the request for legal advice? q g

See N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 516 (M.D.N.C. 1986) 24

Factors to be Considered

• Was the communication

confidential? Wh h h d i Whether the document in question is simply marked “Memorandum” with no Memorandum with no notation of confidentiality

See N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 516 (M.D.N.C. 1986)

25

This is not just a question of labeling. Does the communication itself reveal any y confidential information?

See N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M D N C 1986 (M.D.N.C. 1986 26

Can you overuse your “P i il d” t ? “Privileged” stamp?

No case so finding, but perhaps.

27

Factors to be Considered

Did the attorney have only “Limited Involvement” in the Matter?

• Whether the document is addressed to a number of individuals, only
• ne of whom is in-house counsel
• “Copying the Lawyer” does not create a privileged document.

An entity cannot shield its business transactions from discovery simply by funneling its communications through an attorney.

See U.S Postal Serv. V. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994); Teltron, Inc. v. Alexander 132 F.R.D. 394, 396 (E.D. Pa. 1990); Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987) 28

"Limited Involvement" (Cont.) ( )

• Whether the document is addressed to counsel vs. “cc” and whether

Whether the document is addressed to counsel vs. cc and whether many others, outside of the legal function, were addressees

• Wh th

th d t f t h “ l”

• Whether the document refers to her as “counsel”
• Whether the documents were segregated from other, non-privileged

g g , p g documents.

• Whether the document was marked as “Privileged” and/or

g “Confidential”

See Hardy v. New York News, Inc., 114 F.R.D. 633,644 (S.D.N.Y. 1987); U.S Postal Serv. V. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). 29

Electronic Communications B d E il Beyond E-mails

• Facebook/My Space/Twitter Postings

y p g

– Facebook postings become part of your e-mail if Facebook account/messages are linked to your work e-mail address – Any potential claim for confidentiality is jeopardized especially if the Any potential claim for confidentiality is jeopardized, especially if the identity of the company can be determined from post

• Text Messages

T di i ll d lik l h ll i h h – Texts are traditionally treated like telephone calls with the same expectation of privacy – But what if you pay the bill for your own mobile device? – Quon v. Arch Wireless Operating Co. (before US Supreme Court, argued April 2010) relates to texts that exceeded the amount of texts paid for by the company

30

Communications Involving In- H N L House Non-Lawyers

• What about non-lawyer staff communicating with business people?

Is there a way to cloak that work i e internal investigations with Is there a way to cloak that work, i.e. internal investigations, with privilege? Assumption: Work being done at the direction of legal counsel; initial e-mail indicates being conducted at the direction of counsel indicates being conducted at the direction of counsel But: "…documents prepared for review by both legal and nonlegal staff are not privileged, because the documents cannot be said to have been made for the primary purpose of seeking legal advice." p y p p g g

In re Central Gulf Lines, Nos. CIV.A.97-3829, 99-1888, 2000 WL 1793395, at *2-4 (E.D. La. Dec. 4, 2000). See also, U.S Postal Serv. V. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994); 31

Designating In-House Counsel as Corporate Representative Corporate Representative

• Designation itself does not waive

any privilege

• Difficulty is the possibility of

i d i h inadvertent waiver—the “slippery slope”

See, e.g. Quantum Systems Integrators, Inc. v. Sprint Nextel See, e.g. Quantum Systems Integrators, Inc. v. Sprint Nextel Corporation (4th Cir. 2009), 2009WL1931196 (in-house counsel's deposition testimony provided regarding to notice did not waive privilege) 32

Best Practices Best Practices

• Make strategic decisions regarding which types of documents to protect

Make strategic decisions regarding which types of documents to protect

• Reconsider dual titles and perhaps dual functions, where possible
• Make a practice of specifically referencing the request for “legal advice” or of the

“legal advice” being provided

• Address communications to counsel rather than using “cc”
• Label documents to be protected as “Attorney-Client Privileged” and

Label documents to be protected as Attorney Client Privileged and “Confidential”

• Where absolutely critical to protect privilege, involve outside counsel

y p p g ,

33

In-House Counsel and the l l Attorney-Client Privilege

_____________________

CLE Program Materials Prepared by: Michael Hayes Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Phil d l hi PA 19109 Philadelphia, PA 19109 (215) 772-7211 mhayes@mmwr.com

Tuesday, October 5, 2010

Facts Versus Privileged Communications g

• The attorney-client privilege offers protection against the forced disclosure
• The attorney-client privilege offers protection against the forced disclosure
• f confidential communications between client and lawyer.
• The privilege does not, however, extend to protect against disclosure of the

The privilege does not, however, extend to protect against disclosure of the facts discussed in otherwise confidential attorney-client communications.

35

Facts Versus Privileged Communications

A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did i h ?’ b f di l l f you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with the attorney.

Upjohn v. United States, 449 U.S. 383, 395-96 (1981).

Facts are discoverable, the legal conclusions regarding those facts are not. A , g g g litigant cannot shield from discovery the knowledge it possessed by claiming it has been communicated to a lawyer; nor can a litigant refuse to disclose facts simply because the information came from a lawyer.

Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994). 36

Documents and the Privilege

• Documents which would not be privileged if they remained in the client’s hands do not

acquire protection merely because they are transferred to a lawyer.

See United States v. Robinson, 121 F.3d 971, 975 (5th Cir. 1997); Gould, Inc. v. Mitsui Min. & Smelting Co., Ltd., 825 F.2d 676, 679-80 (2d Cir. 1987); see also New York Marine & General Ins. Co. v. Tradeline (L.L.C.), 186 F.R.D. 317 (S.D.N.Y. 1999); Smith v. Texaco, Inc., 186 F.R.D. 354 (E.D. Tex. 1999).

N d th f t th t d t k l d th i t f tt

• Nor does the mere fact that a document acknowledges the existence of an attorney-

client communication imbue the document with privilege protection.

See Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491 (D. Kan. 1997) (ordering production of redacted portion

• f document concerning scientific studies conducted for defendant relating that a draft work statement was

submitted to in-house counsel for legal input). g )

• However, documents need not be authored by or addressed to an attorney in order to
• btain attorney-client privileged status.

See SEPTA v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 258 (E.D. Pa. 2008) (“[T]he privilege may also extend to certain documents, that while not involving employees assisting counsel, still reflect confidential communications between client and counsel . . . .”).

37

Documents and the Privilege

• In addition, non-attorney employees can share privileged documents with appropriate

personnel in order to relay information requested by counsel or to properly inform the corporation of legal advice without waiving the privilege.

See Smithkline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005).

• Drafts or memorializations of the client’s confidential communications with counsel

are protected by the attorney-client privilege.

See Adamowicz v. I.R.S., 672 F. Supp. 2d 454 (S.D. N.Y. 2009); see also Laethem Equip. Co. v. Deere & Co., 261 F.R.D. 127, 142 (E.D. Mich. 2009) (“drafts of a [confidential] communication to an attorney are privileged.”).

• Moreover, drafts of documents, including contracts, that are prepared by counsel or

circulated to counsel for comments on legal issues may be privileged to the extent that they contain information or comments not included in the final version of the document document.

See Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997); see also Muller v. Walt Disney Prods., 871 F. Supp. 678, 682 (S.D.N.Y. 1994) (“Preliminary drafts of contracts are generally protected by attorney/client privilege, since they may reflect not only client confidences, but also legal advice and opinions of attorneys.”).

38

What About Facts Compiled or Analyzed at the Request of Counsel?

• Internally-generated corporate reports and analyses may be protected from

disclosure depending on the nature of the documents and the circumstances surrounding their creation.

See Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d Cir. 1996) (internal report reviewing employer’s potential exposure for Equal Pay Act violations was protected by the attorney-client privilege as it sought legal advice in connection with employment discrimination action).

• Factual information contained in internal reports commissioned by in house counsel
• Factual information contained in internal reports commissioned by in-house counsel

generally are not protected by the attorney-client privilege (but may constitute work product assuming the primary motivation in creating the report was to aid in possible future litigation).

See Smith v. Texaco, Inc., 186 F.R.D. 354, 357 (E.D. Tex. 1999) (rejecting claim of privilege in connection with data drawn from employee records recompiled in an internal report commissioned by in-house counsel subject to discovery).

• However interpretive material and analyses contained in such reports may constitute
• However, interpretive material and analyses contained in such reports may constitute

confidential communications from client to counsel and therefore fall within the privilege.

See id. (finding “interpretive material comprised of tables, lists, statistical analyses, and graphical representations” contained in report commissioned by in house counsel were covered by the attorney client privilege)

39

contained in report commissioned by in-house counsel were covered by the attorney-client privilege).

Preparing for Deposition as In-House Counsel p g p

• Assuming all efforts to oppose the taking of your deposition fail, your first

step should be to retain outside counsel to help prepare you and represent p p p p y p you for purposes of the deposition.

• Thorough preparation – with your outside counsel – is absolutely critical to

protecting the privilege at your deposition.

• Whether or not your deposition includes attendant requests for documents,

ill d t id tif d t k t th ’ iti di ll you will need to identify and stake out the company’s position regarding all

• f your potentially privileged communications well ahead of the deposition.
• At the same time you must be mindful of your own ethical obligations
• At the same time, you must be mindful of your own ethical obligations.

40

Survey the Landscape – Get Comfortable in the Batters’ Box y

• Consider (but don’t dwell on) the possible reasons why you are being

deposed:

– are you in unique possession of relevant facts or information? – is opposing counsel attempting to do make an end-run around adverse discovery rulings on privilege or other issues? – worse yet is the deposition a harassment tactic? worse yet, is the deposition a harassment tactic?

• Understand the specific subject matter and/or other limitations on your

deposition:

– is there an order limiting the type(s) of information that counsel for the opposing party is permitted to question you on? – have the parties otherwise agreed to limit the scope of your deposition to one or more topics? more topics? – how have the courts in the relevant jurisdiction dealt with issues surrounding the taking of discovery from opposing and/or in-house counsel?

41

Know the Rules and Understand the Potential Outcomes

• f a Privilege Dispute in Your Jurisdiction
• f a Privilege Dispute in Your Jurisdiction
• Thoroughly re-acquaint yourself with the contours of the attorney-client privilege, the

work-product doctrine, the joint-defense privilege and any other potentially applicable li i i di (i d i lf i i l l i limitations on discovery (i.e., trade secrets, privacy concerns, self-critical analysis, etc.). – An understanding of general principles is not sufficient; you need to know the g g p p ; y current state of the law in the relevant jurisdiction(s). – Make sure that your understanding of the law is consistent with that of your

• utside counsel
• utside counsel.

– Closely review any prior privilege or other discovery orders in your action, as well as any other significant privilege decisions previously published by the judge.

42

Prepare for Potential Waiver Issues

• To properly protect the privilege, you need to know what is considered a waiver and

how the scope of waiver is determined in the relevant jurisdiction(s): – Although the privilege belongs to the company, even the inadvertent disclosure

• f privileged communications in discovery can lead to a finding of waiver.

– Using the privilege as a sword doesn’t work – selective waiver is almost always a bad idea in litigation, and especially so if the waiver is made “on the fly” during a deposition. – As a general principle, waiver of the privilege extends to all other privileged communications regarding the same subject matter – and can go further depending on the circumstances. – Again, preparation is key. Work with your outside counsel to identify areas of anticipated questioning likely to implicate potentially privileged communications and/or work-product issues.

43

Assess Your Roles and Responsibilities – and Their Potential Impact on Your Privilege Determinations Potential Impact on Your Privilege Determinations

• Consider your roles and responsibilities as in-house counsel and how they might

impact your deposition testimony, including your ability to identify and protect potentially privileged communications: – Do you have legal and business roles and responsibilities? – Have your roles and responsibilities been clearly defined? – Have your roles and responsibilities evolved during the relevant time period? – Do you have a written job description? – Have you always made clear in what role you are providing advice, information d i t t ll ? and input to your colleagues? – Do your colleagues respect the distinct nature of your roles when they seek your advice and input regarding legal or business matters?

44

Consider Confidentiality Concerns y

• In order to properly identify and assess your potentially privileged communications,

you must consider whether your legal advice was sought and provided in confidence: – Have the participants in / audience to your privileged communications been appropriately limited? – Has the confidential nature of your privileged communications been respected and maintained? D h li i d i h l l – Does your company have any policies or procedures concerning how legal advice is to be requested, provided, and disseminated? Have they been consistently followed?

45

Preparation is the Key

• To effectively protect the company’s privilege at deposition, you must first dedicate

sufficient time and resources to thoroughly prepare for the deposition with your

• utside counsel.
• Depositions of in-house counsel are considered extraordinary events by outside

counsel – your should treat them as such and prepare yourself for what could be a very tense, pressure-filled atmosphere at your deposition. y , p p y p

• Consider conducting a mock deposition with your outside counsel to help prepare for

anticipated areas of questioning and ensure that you and your outside counsel share a mutual understanding of what privileged communications you’ve had and any work- g p g y y product issues that may be implicated.

• Talk with your outside counsel about how he/she intends to object when privilege

issues arise during the deposition and how you intend to communicate with counsel g p y when you believe that a privilege issue may be implicated by a question.

46

“Oh Lord, its Hard to be Humble . . .” *

• As you prepare for your deposition, consider the possibility that we, as lawyers, may

not make the best natural witnesses. Why not? Well, for example: y , p

We . . . hate to admit that we do not know the answer to something (really anything); after all, that’s what we’re paid for, knowing the answer. This urge is especially strong among in-house counsel who are involved in almost every aspect of the company’s business. Their clients rely on them to know the inner workings of the business and to keep them on the straight and narrow To them to know the inner workings of the business and to keep them on the straight and narrow. To admit that they don’t know some detail often feels to them like an admission that they haven’t done their job, even if it’s not accurate. . . . Depositions are about real world events; they require witnesses to acknowledge imperfect facts and imperfect decisions. Hard line advocacy makes the witness look foolish at best and disingenuous at worst. Albert Vreeland and Jennifer Howard, The Care and Feeding of In-House Counsel; The Alabama Lawyer 340 (September 2006). * Mac Davis @ the Muppets ( http://www.youtube.com/watch?v=-07_2DWfEmQ ) 47

Consistent Respect for the Privilege Helps Ensure its Protection g

• To successfully protect its attorney-client privileged communications against

discovery, it has to be respected on an everyday, ongoing basis. y p y y g g

At a deposition, the smart deposing lawyer . . . will not merely ask the in-house counsel to repeat communications made to him by upper management and hope that she momentarily forgets the privilege and answers the question. Rather, the lawyer will attempt, through rigorous questioning, p ege a d a s e s t e quest o at e , t e a ye atte pt, t

• ug

go ous quest o g, to lay a foundation for the argument that the communications are not actually privileged or, alternatively, that the privilege has been waived. For example, the lawyer will ask the in-house lawyer to name all recipients of the subject communication to see if any third parties received the information which, if so, would constitute a waiver of the privilege. Or, the lawyer will question the in house attorney about all the measures taken to ensure that the communication remained in-house attorney about all the measures taken to ensure that the communication remained confidential and not subject to disclosure, again hoping to later argue that a waiver has occurred. The equally smart in-house lawyer, therefore, will take the necessary steps - long before receiving a deposition subpoena - to ensure that the privilege is not only established at the time of the communication, but also maintained thereafter. Todd Presnell, Depositions of In-House Counsel – Protecting the Attorney-Client Privilege; In-House Def. Q. 50 (Winter 2007) (emphasis added). 48

The Attorney-Client Privilege in the C t S tti Corporate Setting

Brian Martin General Counsel KLA T C KLA-Tencor, Corp. Brian.Martin@kla-tencor.com

5 Strategies for Managing the Privilege

• 1. Call your team to action.

y



Too many in-house lawyers are unacceptably

• perating under their law-school-vintage

understanding of the privilege. g g



Ask one of your team members to take responsibility for refreshing the group on the law.



One of your law firms would be happy to take responsibility f thi t i i for this training.



Create a “privileged or not” game



Jenner and Block publishes a handy compendium of cases relating to the privilege relating to the privilege. www.jenner.com/news/news_item.asp?id= 000013872224 .

50

5 Strategies for Managing the Privilege

2

Educate your business teams

2.

Educate your business teams



Watch your language; use of the term

“client”

client



One approach to educating the business teams is to publish a brief white paper teams is to publish a brief white paper explaining the privilege to non-lawyers. www.calstate.edu/Gc/Docs/Attorney- Client_Privilege.doc

51

5 Strategies for Managing the Privilege

3

Develop and implement a standard

3.

Develop and implement a standard internal investigation process.



The effectiveness of an internal investigation



The effectiveness of an internal investigation is dependent upon the actions and decisions made in the first 48 hours. ade t e st 8

• u s

52

5 Strategies for Managing the Privilege

4

Internalize the lessons of Coastal States

4.

Internalize the lessons of Coastal States Gas Corp. v. Department of Energy, 617 F 2d 854 (D C Cir 1980) and Exxon v F.2d 854 (D.C Cir. 1980) and Exxon v. Department of Conservation and Natural Resources 859 So 2d 1096 1100 (Ala Resources 859 So. 2d 1096, 1100 (Ala. 2002).

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5 Strategies for Managing the Privilege

5

Give Courts a break!

5.

Give Courts a break!

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