The outlines of the attorney-client privilege and work-product doctrine are well-established. But how should they apply when an organizational client suffers a cybersecurity event or other intrusion that results in a data breach? Should information about the company’s security policies pre-breach and its post-breach response be given any enhanced protection? Under what circumstances?
The questions
Picture this: You’re travelling across U.S. borders, heading home from a client meeting abroad. However, unlike other trips, this time a Customs and Border Protection agent requests that you unlock and hand over for inspection your computer and cell phone — full of client confidential information. You’ve been concerned about this issue, and so you’ve
The former general counsel for clothing retail giant Zara USA, Inc. can’t claim privilege in his discrimination-wrongful discharge suit for e-mails he created on a company-issued computer, said New York’s First Department court of appeals in an opinion last month — but the same material might be protected by the work-product doctrine, the court held.
Whether you are in-house or outside counsel, your clients want the attorney-client privilege and/or work-product shield to apply to materials created as part of an internal corporate investigation. But the applicability of these doctrines is very fact-specific, and difficult facts can doom that desired outcome. That was the conclusion of the Washington, D.C. district court
Thinking of using a public relations firm to help manage a corporate crisis? Divergent interpretations of the privilege rules have led to differing legal opinions on whether communications between a PR firm and the company or defense counsel are privileged. Two different state courts of appeals ruled last month that such communications were not privileged. They illustrate the privilege risk that can arise in communications with PR firms.
Both in-house and outside counsel can learn valuable lessons from In re General Motors, a recently-issued federal opinion on the attorney-client privilege and work-product doctrine. While some recent decisions have chipped away at the protections for attorney notes and internal memos, this opinion reaffirms that documents a lawyer creates during a corporate investigation will