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Practice Tip: Maintaining Privilege with Consultants

By Hayes Hunt and Arthur P. Fritzinger
October 02, 2014

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.

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