This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via email at: [email protected] Thank You!

Preserving Privilege: Educating Management and Employees on Attorney-Client and Work Product Protection September 22, 2016 Presenters: Thomas Spahn, Partner, McGuireWoods LLP Brian Lavin, Managing Editor, Thomson Reuters Kristen Chittenden, Associate General Counsel, Hendry Marine Industries, LLC and Program Chair, ACC Small Law Department

Organization of Presentation –  Basic attorney-client privilege principles –  Focus on privilege in the corporate setting

3

Organization of Presentation (continued) –  Basic work product doctrine principles –  Special focus on dealing with directors and management •  Education about privilege principles •  Warnings about their role in creating and preserving privilege protection •  Practical guidance on what management needs to know -- in order to maximize privilege protection 4

Practical Non-Privilege Advice for Directors, Managers and Other Employees –  Assume that whatever you write or say will be on the front page of tomorrow's newspaper. •  Do not guess, speculate, or jump to conclusions. –  Be extra careful when using email. •  Avoid humor if it could be misconstrued, check whenever using the auto fill or "reply to all" features, and confirm the accuracy of email recipient lists. 5

Practical Non-Privilege Advice for Directors, Managers and Other Employees (continued) –  Remember that every company employee has a duty to maximize the company's legal protections. •  If you have any questions, ask a company lawyer about those protections. •  Company lawyers represent the company (not you individually), but they can help you fulfill your duty to maximize the company's protections. 6

Practical Non-Privilege Advice for Directors, Managers and Other Employees (continued) –  Realize that a judge might eventually read your communications when deciding whether they are protected. •  You should therefore be careful what you write, and try to memorialize in the body of your communications why they deserve protection.

7

Attorney-Client Privilege: Basic Principles –  Client-lawyer relationship –  Content must be primarily legal rather than business –  Client and lawyer must maintain confidentiality

8

What is Not Sufficient –  –  –  – 

Labels/headers Lawyers as recipients Lawyers as copy recipients Lawyers as meeting participants

9

Privilege in the Corporate Setting –  Need to properly identify the "client" •  Within the corporation •  Within the corporate family •  When dealing with corporate employees

10

Communications with Employees –  "Upjohn" Standard •  Contrast with the “control group” standard •  New developments –  Risks to Privilege Protection •  Widespread circulation •  “Need to know” standard –  Sources of Proof •  Employees to lawyers •  Lawyers to employees

11

Fragility of the Privilege –  Contexts where the privilege can be aborted or waived •  Direct communication to outsiders •  Outsiders' presence during otherwise privileged communications •  Disclosure of pre-existing privileged communications to outsiders

12

Identifying "Outsiders" –  Client agents/consultants –  Other client-related outsiders (including family members) –  Lawyer agents

13

Work Product Doctrine –  Differences between the work product doctrine and the attorney-client privilege –  Protects documents primarily motivated by litigation or anticipated litigation •  Does not protect documents motivated by an external or internal requirement •  Does not protect documents created in the ordinary course of business

14

Work Product Doctrine (continued) –  Availability only at certain times –  Easier to create than privileged communications –  More robust protection than offered by the privilege

15

What Management Needs to Know about Basic Attorney-Client Privilege Principles –  Privilege protection depends on content •  The content must focus on the client's request for legal advice –  Privilege protection depends on confidentiality –  Privilege protection depends on the intimacy of the attorney-client relationship 16

What Management Needs to Know when Communicating by Email –  Recognize that emails' substance can be misinterpreted •  Avoid jokes or ambiguous language –  Recognize that emails can be cryptic •  Articulate the basis for privilege protection in the body of the email –  Remember the ease of transmitting emails to numerous recipients 17

What Management Needs to Know about Communicating with Others –  Clients must treat privileged communications like the "crown jewels“ –  Limit intracorporate communications to those with a "need to know" •  Consider bolstering the "need to know" standard in the body of communications

18

What Management Needs to Know about Communicating with Others (continued) –  Be extra careful in communicating with anyone outside the corporation •  Never disclose the substance of a privileged communication to anyone outside the corporation without a lawyer's approval •  You can simply describe what action you will take, not why you are taking it

19

What Management Needs to Know about Communicating with Others (continued) –  Privilege protection can be lost through any type of communication •  An oral disclosure is as dangerous as a written disclosure •  Letting third parties see a privileged document is as dangerous as letting them keep it

20

What Management Needs to Know when Interacting with Counsel –  Lawyers' warnings about privilege protection serve the client's interest -- even if they seem like an impediment –  When communicating with counsel, articulate the basis for privilege protection in the body of the communication

21

What Management Needs to Know about Joint Defense/Common Interest Agreements –  The "common interest" doctrine is an exception to the normal waiver rule •  It sometimes allows disclosure of privileged communications outside the corporation without waiving the protection –  However, the common interest doctrine is not recognized everywhere, and is unpredictable •  Participants cannot automatically assure privilege protection through a private contract •  Over half of the litigated common interest agreements fail

22

What Management Needs to Know about Joint Defense/Common Interest Agreements (continued) –  Companies normally do not know where they will be sued, so they cannot predict what common interest doctrine standard will apply •  By the time a court finds an agreement ineffective, the waiver will already have occurred

23

What Management Needs to Know when an Internal Investigation Begins –  Take all appropriate logistical steps •  Consider notifying an insurance carrier •  Put document holds in place if necessary, etc. –  Focus on initiation of the investigation •  Involve lawyers immediately

24

What Management Needs to Know when an Internal Investigation Begins (continued) –  Focus on the course of the investigation •  Expect lawyers to be involved continuously –  Focus on the use of the investigation •  Use the investigation's result for legal rather than business purposes

25

What Management Needs to Know when a Government Investigation Begins –  Assess possible work product protection –  Consider parallel/successive investigations –  Generally follow the same rules as with internal corporate investigations •  Consider possibility of cooperation with the government •  Consider possible criminal aspects

26

Questions 27

Practice Point Resources These relevant resources are available with a free, no-obligation trial to Practice Point. Visit legalsolutions.com/practice-point to learn more.

–  Power Point Presentation, Attorney-Client Privilege and Work Product Protection –  Attorney-Client Privilege and Work Product Doctrine Toolkit –  Practice Note, Asserting the Attorney-Client Privilege and Work Product Protection –  Practice Note, Internal Investigations: US Privilege and Work Product Protection –  Attorney-Client Privilege and Work Product Doctrine Checklist: Asserting the Protections

28

Thank you for attending another presentation from ACC’s Webcasts Please be sure to complete the evaluation form for this program as your comments and ideas are helpful in planning future programs. If you have questions about this or future webcasts, please contact ACC at [email protected] This and other ACC webcasts have been recorded and are available, for one year after the presentation date, as archived webcasts at http://www.acc.com/webcasts

29