After officers or directors of a publicly traded company are accused of wrongdoing and are terminated or resign, they may find themselves defending against government investigations or civil litigation. When this happens, the interests of ex-officers likely will be adverse to their former employer. The company might cooperate with a government investigation of former officers or even sue the officers itself.
This article examines two issues that can arise when a company and its former officer or director are adverse to each other and one seeks access to potentially privileged documents of the other. First, the article reviews the circumstances under which the former officer may access communications between the company and its counsel that occurred during the period of the officer’s employment. Second, the article examines whether the ex-officer may assert the attorney-client privilege against a former employer who seeks access to communications that the officer had with his or her personal lawyer over the company’s computer or e-mail system.
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