Today, everyone uses chat at work—including counsel. Chats are becoming an increasingly central source of relevant communications in litigation and investigations. Asserting privilege over documents and complying with privilege log requirements is costly and time consuming. Reviewing and asserting privilege over chat conversations that involve counsel is especially difficult. This article seeks to clarify the boundaries of the attorney-client privilege, urges in-house legal professionals to use caution while using chat applications, and encourages litigators to anticipate and avoid discovery disputes.

The way corporate America communicates has changed (again). While email is still a cornerstone of business communications, the adoption of short-form messaging or collaboration tools with embedded chat features has skyrocketed in recent years, spurred by the necessity of remote work during the COVID-19 pandemic. For example, Microsoft Teams, the most popular business communication service, boasts over 300 million users, up from 2 million users in 2017. Employees working remotely or with teammates in other geographic locations communicate regularly over instant messaging, and they are not just engaging in what we once described as “water cooler conversation.” Rather, companies are increasingly relying on short-form message platforms to facilitate a variety of work discussions. In-house counsel, like all corporate employees, now regularly engage in substantive conversations over chat.