Bass, Berry & Sims attorney Brian Iverson co-authored an article for The New York Law Journal with attorney Robert Counilhan of Fenwick & West addressing best practices for in-house counsel when expecting litigation.
Many in-house attorneys perform a wide variety of functions for their organizations, which makes it difficult to anticipate if privileged documents will be handled appropriately in litigation. To help prepare documents and files for future litigation, the authors outlined several tips to consider ahead of complex disputes:
- Understand that the privilege law may vary depending on the jurisdiction of a future lawsuit.
- Incorporate choice of law clauses in contracts to increase the likelihood that disputes will be handled in jurisdiction where privilege principles are known.
- Separate business and legal communications as much as possible to create greater predictability in close privilege calls.
- Limit distribution of privileged communications and instruct recipients of legal advice not to disseminate the information further.
- Mark communications as privileged or attorney work product to increase the chances that information will be appropriately coded during a large-scale document review.
- Anticipate whether the organization may wish to waive privilege in a future dispute, such as where intent is an element of the claim.
- Take special precautions in internal investigations to increase the chances that related communications are treated as privileged, such as using Upjohn warnings in interviews.
- Institute timely litigation holds to avoid risk of spoliation sanctions.
The full article, “Best Practices for In-House Counsel Anticipating Litigation,” was published by The New York Law Journal on May 7 and is available online.