Consider this troubling scenario. Counsel represents a corporate client that has been served with a non-party subpoena to produce documents in an arbitration to resolve a complex commercial dispute. The subpoena is signed by an arbitrator chosen by the parties because of his perceived expertise with regard to the legal and business issues at the core of the dispute.
Counsel reviews the subpoena, and immediately realizes that the vast majority of responsive documents in his client’s possession are communications between the client and its transactional counsel, core attorney-client communications protected from discovery. Counsel meets and confers with the attorney at whose request the subpoena was issued, to no avail; the adversary demands full compliance and disagrees with counsel’s assertion of the attorney-client privilege.
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