Attorney–Client Privilege in IP Due Diligence

Strategies for Preserving Confidential Communications in IP Asset Transfers

CD of Teleconference with Q&A

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Sponsored by the Legal Publishing Group of Strafford Publications

IP Teleconference Advisory Board

Intellectual property due diligence is critical in many business transactions as the value of IP assets are increasing. Due diligence also presents significant risks for IP owners who are called upon to share confidential and privileged information.

IP owners must carefully consider whether and what privileged information to disclose during a due diligence process. If a deal falls through, disclosing too much privileged information will have far-reaching implications.

Achieving the proper balance of disclosure requires careful forethought and a thorough understanding of the impact of the attorney–client privilege in the due diligence process.

Listen as our authoritative panel of IP law specialists provides their experienced perspectives on when, what and how much to disclose during due diligence, protecting confidential information during the process — and if the deal falls through, best practices for protecting the privilege.

The panel included:

Stephen T. Schreiner, Partner, Goodwin Procter, Washington, D.C. He focuses on all aspects of intellectual property law including patent litigation, patent prosecution, counseling and due diligence related to electronics, software, e-commerce, and business methods.

Steven J. Frank, Partner, Goodwin Procter, Boston. He advises clients in all areas of intellectual property law and has significant experience with IP diligence. He also negotiates domestic and cross-border licenses and technology-transfer agreements. He focuses on patent prosecution, analysis of infringement and related issues, and the drafting and negotiation of agreements relating to the transfer or license of intellectual property.

Hope D. Mehlman, Associate General Counsel, Regions Financial Corporation, Birmingham, Ala. She advises on legal issues relating to intellectual property, information security and threat assessment, phishing, fraud prevention and remediation efforts, and corporate governance.

The panel reviewed these and other key questions:

• What privileged information should be disclosed during due diligence — and what is the best timing for disclosure?
• Under what circumstances are privileges considered waived when the documents are shared?
• What steps can a company and counsel take to protect privileged and confidential information during due diligence?
• If a business transaction terminates during due diligence, what can IP owners do to protect privileged information that has already been disclosed?

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