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Practice Tip: Maintaining Privilege with Consultants
A product liability lawsuit can involve many players. The general counsel of a company defendant may need to consult with different experts and will want to make sure the information the consultant supplies is privileged. If you are outside counsel, once you know what legal standards apply to claims of attorney-client privilege between a company's general counsel and outside consultants, the next step is maintaining that privilege.
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. With these standards in mind, general counsel can take a number of steps to protect confidential communications with outside consultants from disclosure.
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