Maintaining the Attorney-Client Privilege Even with a Third-Party Presence

In a similar vein, companies are turning more and more to joint ventures as they attempt to exploit synergies with other companies ' sometimes even competitors ' to accomplish tasks that companies traditionally completed on their own. For example, in the pharmaceutical industry, companies that develop a compound routinely enter into co-promotion agreements with other pharmaceutical companies to promote and market the approved product. Typically, the companies in the co-promotion agreement create one or more joint committees consisting of employees from each company to handle tasks ranging from overall strategic oversight to the review and approval of promotional materials. In the highly regulated pharmaceutical industry, these committees are continually seeking and obtaining legal advice, and companies and their counsel should be diligent in considering whether such communications are privileged and, in turn, protected.

When viewed in hindsight (during litigation), these complex corporate relationships necessitate a careful evaluation of potential applicable assertions of privilege. This article looks at two of the more recent trends to assert and maintain a privilege over communications with non-corporate employee: 1) third parties being considered functional equivalents of company personnel or working as agents for company attorneys in order to maintain an attorney-client relationship; and 2) joint ventures maintaining sufficient common interest with a company to protect communications under a claim of the work-product privilege.