Attorney-Client Privilege and Corporate E-Mail: Navigating the Morass of Personal Communications in Investigations -
Internal investigations are an important process for identifying potential wrongdoing by agents of a company, evaluating the associated litigation and regulatory risks, and devising appropriate responses. In the course of an investigation, the company’s internal and external counsel alike must take steps to protect the disclosure of privileged information so as not to forfeit the right to withhold potentially sensitive material, often about the very risks and issues under investigation.
While a company’s counsel will typically be seeking to protect its own privilege, difficult questions arise in relation to emails sent by employees to their own personal lawyers using the company’s IT systems. This is because it is unclear whether such emails retain confidentiality. Experienced practitioners know that the purpose of the attorney-client privilege is to protect the confidentiality of client communications. Thus, as company policies that allow monitoring of emails or provide third party access may undermine any reasonable expectation of confidentiality, they may determine whether the privilege applies to personal communications sent on a company server.
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