Protecting Attorney-Client Privilege in Communications With Outside Directors: Establishing Communication Policies

Description

To qualify for protection under the attorney-client privilege, communications of legal advice, including email, must be made in confidence. When communicating with a board of directors comprised of outside directors, company counsel must consider whether or not email communications with those directors are indeed confidential and therefore privileged.

A threat to the confidential nature of privileged email communications arises if the director's emails on the employer's system are subject to discovery in an investigation or civil action and whether that discovery is relevant to the employer's or the company's business. If the employer must collect and review the director's emails for a matter related to the employer's business, company counsel will likely not know that the employer or its counsel have accessed and reviewed privileged email communications about company business.

The logistics of the discovery process present challenges even when the director's employer receives a subpoena for company-related emails or if the employer is cooperating to provide the emails voluntarily to the company. Retrieving emails from the director's employer system will require IT personnel to access the confidential and privileged emails. The director's employer may be unwilling to produce the director's emails to the third party serving the subpoena, or even company counsel, without first reviewing the emails to segregate those regarding the company from those relating to the employer's business.

Listen as our expert panel addresses recent Delaware court cases on attorney-client privilege and communications with outside directors and how to establish best practices in communications policies to protect the company and its interests.