It’s simple—the attorney-client privilege protects from discovery communications between a client and his or her lawyer. It’s challenging—the privilege applies to communications between (some) corporate representatives and outside counsel, depending whether federal or state privilege law applies; and if state law, which state. It’s convoluted—the privilege protects communications between (some) corporate representatives and in-house counsel, but only if U.S. law applies, the issue arises in an advantageous jurisdiction, and in-house counsel satisfy a heightened burden, prove the communication arose in a legal (rather than business) capacity, and the company employee did not waive the privilege by inappropriately disseminating the communication.
Republished with permission. This article first appeared in In-House Defense Quarterly, Winter 2014 Issue.
Republished with permission. This article was republished in Hospitals and Health Systems Rx, an AHLA Newsletter, Volume 16, Issue2, in November 2014. Hospitals and Health Systems Rx is a publication of the American Health Lawyers Association Hospitals and Health Systems Practice Group.