Companies often wind up in disputes concerning the discovery of reports, memoranda, emails and other documents written by their in-house lawyers in connection with prospective business transactions. Such disputes can raise difficult questions about the scope of the attorney-client communication privilege. No matter what the expectations of in-house lawyers and company executives, it can be hard to predict whether a court will shield such documents from discovery or compel them to be produced to other parties. And the disclosure of potentially privileged documents containing sensitive information and advice can have serious ramifications—not only for a specific case but for a company’s long-term interests and objectives.
As challenging as such discovery disputes can be for in-house lawyers and litigation counsel, they become much worse when a document that a company believes to be privileged is inadvertently disclosed in the course of litigation. In those unfortunate cases, in-house lawyers and litigation counsel are faced with the unenviable task of attempting to “claw back” the document, limit any potential waiver of privilege in litigation, and deal with the practical consequences of the disclosure of sensitive information. Even when a company is able to “claw back” a document, the inadvertent disclosure of the document can haunt the company for years in future litigation and business dealings.
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