Preserving Attorney-Client Privilege in Class Action Litigation

Outline

1. Application of privilege to class action litigation and relevant Model Rules
   1. Communications between plaintiffs’ attorneys and potential class members (e.g., questionnaires) before attorney–client relationship is established
   2. Communications between plaintiffs’ attorneys and class representatives
   3. Communications between class representatives and absent class members
   4. Communications between co-defendants
2. Advice of counsel defense
3. Common interest privileges
   1. Joint-defense privilege
   2. Common defense privilege
4. Best practices for preserving the privilege
   1. Legal communications
   2. Witness interviews
   3. Electronic communications

Benefits

The panel will review these and other key questions:

• Does the attorney–client privilege apply to communications between attorneys and class members that occur prior to the establishment of an attorney–client relationship?
• Under what circumstances should the joint-defense privilege and common defense privilege be exercised?
• What are some best practices for plaintiffs and defense counsel to preserve the attorney–client privilege?
• What Model Rules are implicated by attorney–client communications in class action cases?