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).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]