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In-house lawyers perform a variety of functions, including contract negotiator, compliance advisor, business strategist, and litigator. In this fast-paced and varied environment, it is often difficult to analyze (much less predict) how a court might view a privilege claim. These challenges can be exacerbated by the large volume of documents in complex disputes, ever-increasing costs of discovery, and the high stakes of litigation. In this article, we provide practical best practices for in-house counsel to implement now to prepare documents and files for future litigation.

General Privilege Principles

The attorney-client privilege is frequently described as one of the oldest privileges, and most in-house attorneys have a strong working knowledge of core privilege concepts. Under New York law, privilege attaches to “a confidential communication made between the attorney or his or her employee and the client in the course of professional employment.” N.Y. C.P.L.R. §4503(a)(1). Corporations may invoke the attorney-client privilege, and “[t]he privilege applies to communications with attorneys, whether corporate staff counsel or outside counsel.” Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 591-92 (N.Y. 1989). New York law also protects from disclosure “[t]he work product of an attorney” and other materials “prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent).” N.Y. C.P.L.R. §3101(c), (d).

New York in-house counsel cannot always assume that New York law will govern privilege determinations, however. Depending on the litigation forum and choice of law analysis, privilege issues might be governed by another state’s law, federal common law, or even foreign law. Although many U.S. jurisdictions follow similar privilege principles, there are some significant differences in the details. For example, under federal common law, courts analyze an attorney’s communication with a lower-level corporate employee by applying the five factors in Upjohn Company v. United States, 449 U.S. 383 (1981).

But only a handful of states have adopted the Upjohn factors, and other states apply a variety of different tests, including the “control group” and “subject matter” tests. An in-house attorney’s communication with a lower-level employee who is a key witness might be privileged under the Upjohn test and the “subject matter” test, but it might not be privileged under the “control group” test.

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