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Selected Privilege Issues for Franchise Counsel

By Eric H. Karp and Les Wharton
January 28, 2010

It is common, and in many cases absolutely necessary, for an employer to provide a laptop to its workers. Twenty years ago, virtually no one had a “portable” computer. Where a filing cabinet or a desk drawer would have been the repository for correspondence 20 years ago, the correspondence now resides on a server, or on a PC or a laptop hard drive. Text and voice messages are also sent through a PC or a handheld device or a telephone. A telephone would not have stored a message, at least not for very long, whereas now the numbers that have been called and received, as well as text and voice messages, can be recovered from the computer or laptop hard drive, if not the phone itself.

As recent litigation has demonstrated, the use of new communications devices with new capabilities is having an effect on how attorneys and their clients communicate, and, therefore, is raising issues in attorney-client privilege.

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