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Employee Cheat Sheet: Keeping Privileged Documents Out of Enemy Hands
Practical Law Legal Update 3-543-3775 (Approx. 4 pages)
Employee Cheat Sheet: Keeping Privileged Documents Out of Enemy Hands
by Practical Law Litigation
| Published on 30 Sep 2013 • USA (National/Federal) |
This Legal Update explains the basics of the attorney-client privilege and work product doctrine and sets out steps that employees can take to ensure that privileged communications and documents remain privileged.
The importance of preventing the opposing party in a litigation from seeing a client's privileged documents cannot be overstated. The attorney-client privilege and work product doctrine protect from disclosure a client's privileged documents, including ones that may be potentially damaging. Therefore, employees of a company client must be aware of the types of communications and documents covered by these privileges and the best practices for ensuring that the privilege is not waived.
This cheat sheet for employees sets out:
- The basics of the attorney-client privilege.
- The basics of the work product doctrine.
- Steps every employee can take to keep privileged documents out of enemy hands.
Basics of the Attorney-client Privilege
The attorney-client privilege protects from disclosure to third parties communications that are:
- Confidential.
- Between an attorney and a client.
- Made for the purpose of obtaining or providing legal advice.
A communication with an attorney acting in a business capacity, rather than a legal capacity, is not privileged. Additionally, a communication is not automatically privileged just because it was sent to an attorney.
Basics of the Work Product Doctrine
The work product doctrine protects from disclosure to third parties materials that were prepared:
- By or for a party.
- In anticipation of litigation.
Materials protected by the work product doctrine may include documents that were:
- Drafted by a client's representative, such as an accountant or financial advisor.
- Created without an attorney's participation, though attorney involvement helps.
Unlike the attorney-client privilege, the protection afforded by the work product doctrine may be overcome by an adversary who demonstrates a substantial need for the protected document.
Steps to Protect Privileged Communications and Documents
Employees can take the following steps to ensure that privileged communications and documents remain protected from disclosure by the attorney-client privilege and work product doctrine:
- Maintain the confidentiality of an attorney-client communication by never:
- discussing legal issues in public;
- copying or blind copying third parties on otherwise privileged documents, including e-mails;
- forwarding a privileged e-mail to a third party;
- sharing information contained in a privileged document or e-mail with a third party;
- showing a privileged document or e-mail to a third party; or
- inviting outsiders to otherwise privileged meetings.
- Keep privileged communications separate from ordinary course of business communications.
- Limit employee access to privileged documents.
- Label only documents that are actually or potentially privileged as "Privileged and Confidential."
- Make clear in the body of the document that legal advice is being sought.
- Circulate privileged documents only to employees who "need to know."
- Carefully draft e-mails knowing that, like diamonds, they last forever.
- Double check the recipient list on an e-mail before hitting the send button.
- Contact in-house or outside counsel with any questions relating to privilege.
For materials on educating employees about maintaining privilege, see Article, Webinar: Preserving Privilege: Educating Management and Employees on Attorney-Client and Work Product Protection. For additional information on these privileges, see Legal Update, Attorney-client Privilege versus Work Product: What's the Difference? and Attorney-Client Privilege and Work Product Doctrine Toolkit.