There is a trend in recent decisions that affects the attorney-client privilege and work-product protection long afforded inside counsel. The cases distinguishing between an inside lawyer’s “legal work” and her “business” functions are being applied to the routine functions of gathering documents in response to subpoenas and issuing corresponding “litigation hold” notices. This article will describe the risk to inside counsel and outline a few simple steps to mitigate the risk.

We see issues when inside counsel take steps to preserve and produce information, especially electronically stored information, in response to subpoenas in civil and criminal cases. To control costs and concentrate resources, some companies have consolidated the process into an almost clerical function. That consolidation, however, spawns arguments that the tasks are no longer “lawyerly” and that, therefore, the process of holding and gathering documents should not be deemed “legal” and the memos reflecting the process should be discoverable. The same issues arise when outside lawyers are called in to do the work, but because outside legal resources generally are engaged to perform legal tasks like identifying and selecting responsive and privileged information, it is less likely that a court would describe what they are doing as not “legal” in nature.

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