The attorney-client privilege is an invaluable legal principle ensuring that attorneys and clients can freely communicate without fear that those communications will one day be disclosed to opposing counsel or others. While it is important to understand when and how this vital privilege attaches, it is equally important to understand how to properly assert and overcome challenges to the privilege during litigation to ensure that privileged communications remain protected.
Recently, the Southern District of New York issued an opinion in In re Application of Aenergy, S.A., 19-MC-542 (VEC), 2020 WL 1659834 (S.D.N.Y. April 3, 2020) (Aenergy), highlighting common pitfalls when counsel asserts the attorney-client privilege. The opinion addresses two specific areas where the assertion of the privilege can be difficult, but important, to get right: (1) communications with in-house counsel, and (2) categorical privilege logs.
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