Courts have taken two different approaches to claims of privilege between a company’s general counsel and outside consultants. The majority of courts have protected these communications if they meet the traditional requirements for application of the privilege in the corporate context, and the consultant is the “functional equivalent” of an employee. As with employees, under the majority approach, communications with consultants are privileged if, by virtue of their role, those consultants possess or have access to confidential information necessary for the provision of legal advice.
A minority of courts, however, impose the additional requirement that the consultant be hired to perform a function necessary to actual or anticipated litigation. Under this approach, even if confidential and necessary for the provision of legal advice, communications with consultants are not protected if they are hired to perform routine business functions.
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