The common interest doctrine may also protect a notice sent to a supplier, but like the work product exception, its applicability is more limited. The common interest doctrine is an extension of solicitor-client privilege that provides for a limited extension of waiver when a solicitor-client communication is disclosed to third parties. To be eligible for protection, “(1) the party claiming the rule must share a common legal interest with the party with whom the information was disclosed, and (2) the statements for which protection is sought are designed to promote that interest.” See Gulf Island Leasing, Inc. v Bombardier Capital, Inc., 215 F.R.D. 466, 471 (N.L.D.R. 2003). The biggest obstacle to extending solicitor-client privilege to communication between a company`s lawyer and a vendor is the requirement that the parties have a common legal interest, not just a common commercial interest. See In re FTC, No. M18-304 (RJW), 2001 WL 396522 at *2 (S.D.N.Y. 19 April 2001). While the common interest doctrine often applies in a common defense scenario, it is not such a strong shield in day-to-day communication with a supplier, as the common interest in this context is business-related, not legal. For example, two courts in the Southern District of New York found that privilege was waived when an in-house attorney advised an advertising agency on a business strategy that “involved litigation concerns.” Id., see also Cellco P`ship, 2004 WL 1542259, p.
*1. Solicitor-client communication privilege, on the other hand, protects communications made for the purpose of obtaining or providing legal advice. Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981). In addition to the examples above, some examples of these types of documents that could be accidentally shared with providers include PowerPoint, which includes advice from a lawyer or advice from a lawyer regarding tax structure or strategy. It is generally recommended that you post a statement at the top of your emails and other documents sent to commercial clients stating that the communication is covered by solicitor-client privilege and/or contains a solicitor-client work product and that the communication should not be transmitted. This marking itself does not protect the communication if it is not otherwise worthy of protection or if the privilege is subsequently revoked by disclosure to third parties. However, if your business client has received training, this statement reminds them to exercise caution when sharing information with others, especially people outside the organization. If the beneficiary has not received training, they can at least ask the employee to call and seek advice. Despite your best efforts, a business client may insist that the “why” of your advice be communicated to a supplier, or inadvertently communicate the legal reason for a decision.
In these situations, three exceptions can be used to protect a communication from renunciation: 1) the work product doctrine, 2) the functional equivalent doctrine; and (3) the doctrine of the common interest. While these can be useful tools in your arsenal, they should be handled with caution. Prevention is the best remedy, as measures to ensure proper communication with the lawyer may prevent certain disclosed information from being used as evidence in future litigation. Solicitor-client privilege protects certain communications from disclosure in a court case, while the work product doctrine protects certain documents and communications created during the process of a lawsuit itself. These protections are strong but fragile and must be carefully weighed when communicating with internal or external lawyers. Voluntary disclosure to lower-level employees – Disclosure of privileged information to employees outside the “comparison group” who have a need to “know” the information does not generally constitute a waiver of privilege – the so-called “subject” test. To protect privilege, ensure that junior employees are excluded from privileged communications as soon as they no longer need them. It should also be noted that some jurisdictions still use the “comparison group test,” which considers the disclosure of privileged information to lower-level employees as an exemption.
The underlying facts contained in the communications are also not protected by solicitor-client privilege if they are available from another source. As an example of what this might look like in practice, Attorney General v. Facebook, Inc., the Massachusetts Supreme Court (SJC), asked Facebook to share factual information about apps the tech company had collected data on as part of an internal investigation. [3] But the SJC only required Facebook to share this information in a spreadsheet – actual internal communications about the apps in question were protected by solicitor-client privilege. The multitude of new digital communication and social media platforms available in today`s technologically advanced world is a double-edged sword. As useful as they are for speeding up communication, opening new business avenues and fostering creativity, these platforms are fertile ground for the accidental disclosure of otherwise confidential legal information and advice. Whether through external hacking, unexpected “transfer,” or misdirected “inventory,” there`s a good chance most companies will end up facing a situation where confidential information escapes from the web and falls into unexpected hands. [1] Given that these disclosures can easily lead to litigation or play a role in litigation, it is important to understand what legal safeguards are in place to stop the use of this disclosed information as evidence in court. The training should not only train your sales team, but also provide practical advice on how to avoid a problem.
