Crane on Law by James Crane

Privilege review is one of the most costly and complicated parts of defending a large-scale action, for a variety of reasons. Given a population of potentially privileged documents, attorneys will often have a reasonable difference of opinion regarding the privileged nature of particular documents. Ddeciphering between the business and legal roles of corporate employees is challenging. Here are 3 actions a company can take to establish, maintain, or preserve privilege in documents it intends to protect:

• Avoid dual roles whenever possible. Allow General Counsel to be General Counsel, and don’t add titles or responsibilities to ostensibly legal positions. When Director or Vice President is added to a title in a legal department, it confuses the roles and creates an argument for waiving privilege based on the employee’s business role. It is a good practice to delineate which tasks are legal and which are not legal for those employees who handle business and legal functions.
• Educate employees regarding the meaning of seeking legal advice and which communications are privileged. It is a good practice to train employees about how to ask for opinions so that they clearly indicate that they are looking for a legal opinion, not a layman opinion, or a business opinion. Problems often arise when an employee believes that CC’ing or BCC’ing an attorney on a communication makes it privileged. Not only is this not true, the false reliance encourages the senders and recipients to be less careful in the information they divulge, because they believe it is covered as privileged.
• Control the distribution of legal advice. Typically, there is a very select group that needs the legal advice. When that advice is forwarded indiscriminately or in a mass e-mail, the privilege claim becomes more tenuous. This is a difficult activity to monitor, so it also comes down to educating employees regarding the nature of privilege and how it is waived.

I hope that you find this helpful. I encourage you to contact me with additional tips that work in your company to preserve privilege.