~KKTHANKS~

And, baby, that’s show business for you. New album The Life of a Showgirl. Out October 3  ❤️‍🔥

https://taylor.lnk.to/TSTheLifeofaShowgirl

You belong with me. 💚💛💜❤️🩵🖤

3rd Parties Break Privilege

Even & Especially Lawyers

Lawyers for 2 different sides negotiate a contract via back & forth emails. Each side makes comments & proposed changes on the drafts.

The MANY different versions of drafts.

Are the drafts protected by privilege?

2 scenarios:

The other side / opposing counsel sent the drafts - Not privileged

During a back and forth negotiation, except in rare situations, opposing counsel’s presence in a correspondence constitutes a 3rd party that breaks privilege.

2. The other side sent their most recent draft which was subsequently distributed internally between company attorneys who added their comments to that draft; the draft was kept company confidential - Privileged or Partially privileged

This draft would be protected by privilege or the internal comments from attorneys would at least get redacted before the draft could be produced. Legal work, review, advice, etc on a draft from the other side is protected by privilege, even if the draft itself (without the lawyers’ comments) is not protected by privilege anymore.

Related situations:

Email correspondence attaching the same drafts:

If the email includes opposing counsel: Not privileged

Swift Discovery Lessons

It’s no secret I’m a huge Taylor Swift fan so of course I jumped at this opportunity to use this to discuss board meeting minutes, agendas, and attorney-client privilege.

Let’s say this was a real board meeting agenda, as many Swifties would likely argue that it is. And let’s say Taylor Nation wanted to keep the discussion of the evidence privileged.

What practices should The Tortured Poets Department use to preserve privilege?

It’s good that the agenda mentions the purpose of reviewing evidence during the meeting. However, I’d highly recommend making it abundantly clear that an attorney(s) will attend the meeting, participate in this review, and provide legal advice.

I’d either advise keeping the subject matter simple so it doesn’t reveal too much information, but enough to make the topics of the meeting clear. The department did pretty well in that regard.

Any further legal detail should either get sent separately, or put in a distinct section to make it easier to facilitate necessary redaction.

The department should only send the agenda and subsequent minutes on a “need-to-know” basis, likely only including board members and attorneys. The department should also specify very clearly that the information must remain confidential and the recipients are not to distribute it to third parties.

If the meeting minutes include legal advice, the department should include a very clear legal section in the minutes and specify that its contents are protected by attorney-client privilege. If the discussions pertain to a litigation, I also advise labeling it as attorney work product, in case an argument is made that meeting minutes aren’t a “communication” and therefore wouldn’t have attorney-client privilege protection. However, since the notes would constitute a summary of a communication, I don’t know how much success an attorney making that argument would have. BUT it doesn’t hurt to take the extra step to be on the safe side!

All credit for the photo and its contents go to Taylor Swift and Taylor Nation. And for a fortnight I get to feature Taylor Swift in my law blog… 🎶

REDACTED FOR PRIVILEGE

Lawyers use redaction as a technique to avoid producing privileged information to the other side during litigation.

Does that mean that anything containing information that needs redaction won’t get produced in discovery?

No it does not.

Only parts of documents that contain privileged information get withheld; that’s the whole point of using redaction as a technique.

People tend to get into trouble here when they assume that an attorney’s presence on a document and the presence of that lawyer’s legal advice shields the entire document.

How can you avoid this? Keep your communications pertaining to legal advice separate and distinct from other, unrelated, non-privileged information. If you’re consulting with an attorney that “wears multiple hats,” make it clear that the communication regards legal advice and the discussion with the attorney is within their legal capacity.