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

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

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Conducted on Thursday, March 31, 2022

Recorded event now available

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Course Materials

This CLE webinar will prepare corporate counsel to protect confidential business communications during investigations, discovery, depositions, and litigation when outside directors contact an audited company. The panel will discuss the recent Delaware Chancery Court cases on this matter and issues that arise regarding business advice versus legal advice, discoverable facts versus privileged communications, establishing policies for emailing and other communications, and other essential issues to assist in-house counsel.

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.

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Outline

  1. Attorney-client privilege
  2. Protecting communications
  3. Issues with outside directors
  4. Delaware cases
  5. Best practices

Benefits

The panel will address these and other key topics:

  • How have recent Delaware cases ruled regarding attorney-client privilege and outside director communications?
  • What types of circumstances are most likely to give rise to privilege claims?
  • How can companies protect communications from discovery?
  • What policies should a company consider regarding communications with outside directors?

Faculty

Ingram, Kimberly
Kimberly M. Ingram

Attorney
Bradley Arant Boult Cummings

Ms. Ingram focuses her practice on complex commercial and business litigation and appellate matters in state and...  |  Read More

Leavengood, Tyler
Tyler J. Leavengood

Partner
Potter Anderson & Corroon

Mr. Leavengood is a partner in the firm's Corporate Group. His practice focuses primarily on corporate and...  |  Read More

Lopez, Lenin
Lenin E. Lopez

Corporate Securities Attorney, Management Liability
Woodruff Sawyer

Mr. Lopez has deep experience in providing legal counsel to public company boards and executive management in helping...  |  Read More

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