Preserving Attorney-Client and Work Product Privileges in Class Action Litigation

Protecting Confidential Information, Avoiding Inadvertent Disclosures, and Navigating the Complexities of Parallel Regulatory Investigations

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, April 17, 2014

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will provide guidance to class counsel for preserving the attorney-client privilege and leveraging the work product doctrine in class litigation. The panel will offer their insights on when the privilege attaches, how it can be waived, and special considerations for protecting confidential documents from disclosure during litigation when a parallel regulatory proceeding accompanies a class claim.


Class action litigation raises unique issues concerning the attorney-client privilege and work product doctrine. The involvement of multiple parties and multiple stages of litigation creates unique legal and ethical considerations, including whether pre-certification communications between plaintiffs' counsel and putative class members are privileged.

Frequently, class litigation over defective consumer products proceeds simultaneously with regulatory investigations by the FDA, FTC or Consumer Product Safety Commission, which can create additional attorney-client privilege and work product problems. Courts have ruled more often than not that the disclosure of information to regulators during investigations waives the attorney-client privilege in class litigation.

Counsel representing parties in a class action suit must be mindful of the impact of a parallel regulatory investigation on the class action case, especially with regard to attorney-client and work product privilege protections.

Listen as our authoritative panel of class litigators examines the attorney-client and work product privileges in the context of class action litigation, including when the privilege attaches, how it can be waived, and how to avoid waiver and shield information. The panel will discuss their insights and best practices to preserve the privilege, including a discussion of protecting documents disclosed to the government during parallel regulatory investigations.



  1. Application of attorney-client privilege to class action litigation
    1. Communications between plaintiffs' attorneys and putative class members
    2. Communications between plaintiffs' attorneys and class representatives
    3. Other privileged communications
  2. Considerations when there are parallel regulatory investigations
  3. Best practices for preserving attorney-client privilege and work product protection
    1. Communications—legal vs. business
    2. Witness interviews
    3. Electronic documents


The panel will review these and other key questions:

  • When does attorney-client privilege attach to communications between putative members of a class and plaintiffs’ counsel?
  • When does disclosure to the government during a regulatory investigation waive the attorney-client privilege or work product protection in a related class action proceeding?
  • What are some best practices for plaintiffs and defense counsel to preserve the attorney–client privilege?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Myron M. Cherry
Myron M. Cherry

Myron M. Cherry & Assoc.

Mr. Cherry has over 40 years of experience as a trial lawyer. In the early 1970's, Mr. Cherry became nationally...  |  Read More

Arthur C. Fahlbusch, Jr.
Arthur C. Fahlbusch, Jr.

King & Spalding

Mr. Fahlbusch, a member of the firm’s E-Discovery Group, is a commercial and product liability litigator with...  |  Read More

Neal Walters
Neal Walters

Ballard Spahr

Mr. Walters is a Partner in the Litigation Department, Practice Leader of the Product Liability and Mass Tort...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include program handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Audio