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What's Mine Is Not Yours
An officer or director's company exit often feels like a divorce, with post-departure monetary payments and document-custody issues dominating the immediate aftermath. Companies are quick to enforce non-compete agreements and protect trade secrets as the divorce unravels, but often do not consider protection of legal communications in which the officer or director participated. And when it comes to discovery of a company's privileged communications in post-departure litigation, what's mine is not always yours.
Former officers and directors inherently maintain insider knowledge, including the contents of privileged e-mails and other communications that they created or received. The officer/director may personally possess these privileged documents because he extracted them prior to exiting the company, or he may request such documents during the discovery process.
The corporate attorney-client privilege belongs to the corporation, but corporations can only act and communicate through its officers, directors, and agents. In post-divorce litigation between the company and its former officer/director, the question arises whether the corporation may prevent use of privileged, officer/director-created communications or whether the privilege equally belongs to the former officer/director turned adversary. Courts grappling with these issues take one of two positions ' the collective-corporate-client approach, or the entity-as-client approach.
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