THREE’S COMPANY: HOW ATTORNEY-DIRECTED INFORMATION GOVERNANCE PROJECTS WITH CLIENTS AND CONSULTANTS CAN PROTECT THE ATTORNEY-CLIENT PRIVILEGE
As volumes of data continue to explode and companies become more data-dependent, the need for companies to implement information governance practices to get their ‘data houses in order’ rises in tandem. The proactive retention of outside counsel for the strategic implementation of information governance – the coordinated management of the information lifecycle within and without the client firewall – can help to establish the attorney-client privilege and shield highly sensitive communications from disclosure.
To understand the complexities of a company’s computer networks and information management practices, companies often need the assistance of specialised third-party consultants. When such consultants are retained directly by outside counsel, communications among the consultants, outside counsel and the company are more likely to fall within the umbrella of privilege than if the consultants were retained directly by the company itself. Outside counsel’s management of this tripartite relationship can help to create a ‘cone of protection’ around the development of information governance policies, including enterprise-wide security assessments, legacy remediation, and Big Data use policies. This can help the company preserve privilege and prevent production of potentially harmful communications and internal assessments in any subsequent litigation or regulatory investigations.
The attorney-client privilege – the most sacred tenet of litigation – serves “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice”. Upjohn Co. v. United States (449 U.S. 383, 389 (1981)). It shields from disclosure “communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice”. United States v. Mejia (655 F.3d 126, 132 (2d Cir. 2011)).
Jan-Mar 2016 issue