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No Communication, No Privilege

Author: Todd Presnell, Today’s General Counsel

… Corporate counsel should not forget, however, that the privilege protects only communications. And, unfortunately, some lawyers lose privilege arguments because of an illusion that a communication has taken place…
… The court gave the defendant company the benefit of the doubt that an in-house lawyer created the notations, but nevertheless rejected the privilege assertion. Noting that the attorney–client privilege “protects communications,” the court found that the assistant general counsel failed to provide evidence that “the notations were ever communicated to anyone.” And without evidence that information (here, a lawyer’s notations on documents) was communicated (meaning conveyed), the privilege did not apply…

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Editor Comment:

The article is a long and rather scholarly coverage of the evolution of the communication privilege. It brings up a couple interesting issues for retention policies and classification systems. First is the need to retain the actual communication wrapper for legal work product to preserve privilege. The proliferation of online meetings, chat and collaboration channels are generally considered informal communications and not addressed by many retention policies or systems. Users may exchange documents on these systems without creating any record of the transfer context. The second challenge is developing classification logic beyond simple lists of attorney names/domains. Most in-house counsel provide legal and business advice. The long term goal is to have specific classifications that minimize the cost of traditional privilege review while protecting real confidential communications.

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