They Said What?!: Protect Your Internal Discussions from Disclosure in Litigation
When discussing complex employment issues, an employer would be wise to take steps to ensure that communication is protected from disclosure and remains confidential, preventing it from becoming discoverable in future litigation. The attorney-client privilege protects a (1) communication, (2) made between privileged persons (attorney and client), (3) in confidence, (4) for the purpose of obtaining or providing legal advice or services for the client. This means that sensitive communications between HR personnel, senior executives, or other non-legal personnel are typically not privileged . Even when in-house counsel are included, maintaining privilege can be difficult when the in-house attorney wears multiple “hats.” The work product doctrine shields "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. . . ." Fed. R. Civ. P. 26(b)(3)(A). Why Should I Care About Privilege? Internal communic...