Remote work is here to stay. Long after the COVID-19 pandemic abates, many of us will remain in a work-at-home model, at least part of the time.
According to a January PwC survey, 83 percent of employers now say that the shift to remote work has been successful for their companies, compared to 73 percent in June 2020. More than half of employees (55 percent) would prefer to be remote at least three days a week even after the pandemic.
Technology has made this transformation possible, largely by increasing the number of ways that employees can communicate and collaborate remotely. With any advances in communications technology, however, attorneys should consider how they may affect the application of the attorney-client privilege and the attorney work-product doctrine.
Because the pandemic and remote work have ushered in so many new communication technologies so quickly, it is important to consider the implications for employee communications, especially among remote workers in large corporations. This article offers 10 suggestions for safeguarding privilege and work-product protections in today’s (and tomorrow’s) remote work world.
Evolving law on technology, privilege and work product
Because many of the technologies that emerged with the pandemic are so new, they are not yet the subject of case law. For that reason, it is helpful to start with fundamentals.
The attorney-client privilege — the oldest legal protection for confidential communications between attorneys and clients — dates back to English common law in the 1500s.
The purpose of the privilege is “to encourage full and frank communication between attorneys and their clients … [recognizing] that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client,” as stated by the US Supreme Court in its 1981 opinion in Upjohn Co. v. US.
The key elements are: (1) the holder of the privilege is or is seeking to be a client; (2) the person with whom the communication occurs is an attorney or a subordinate of an attorney; and (3) the communication was for the purpose of seeking or providing legal advice.
The attorney work-product doctrine is a legal protection for written or oral information prepared by or for an attorney during a legal representation, especially during or in preparation for litigation.
In 1947, the Supreme Court recognized the attorney work-product doctrine in Hickman v. Taylor. The key elements are (1) documents or information (eg, notes, memoranda, analyses, chronologies and mental impressions); (2) prepared by or at the direction of an attorney; (3) during or in anticipation of litigation (or other proceeding).
With corporate clients, privilege and work product apply, of course. Their application is more complex, however, because corporations communicate with lawyers for various reasons and have many employees in different roles. In this setting, courts assessing privilege examine two key factors.
The first involves the substance of the communication and whether the predominant purpose of the communication is to render or solicit legal advice. This is often referred to as the primary-purpose test.
The second factor is the role of the company employees involved, including whether the legal advice is relevant to and within the scope of their corporate duties.
Because in-house attorneys often are involved in business matters, courts have maintained a stricter standard for determining whether to protect confidential information through the attorney-client privilege. In many foreign jurisdictions, the attorney-client privilege may not apply to communications with in-house counsel.
While email is not new, it is instructive on how courts view privilege and work product when applied to other communication technologies. Cases analyzing privilege with email communications offer a helpful guide to in-house counsel and others regarding how privilege may be applied to newer communication technologies.
One instructive email case is In re: Vioxx Products Liability Litigation, in which the defendant asserted privilege over 30,000 emails and other documents, and the court appointed a special master to review and determine privilege.
As a general matter, the US District Court for the Eastern District of Louisiana held in 2007 that privileged email communications were limited to emails addressed solely to attorneys with limited circulation and an identifiable legal question. In contrast, communications such as emails to lawyers and nonlawyers for review, comment and approval were not privileged because the primary purpose could not be legal advice when the same review is sought from others.
Other examples included emails with legal advice that were forwarded to others unless the purpose of forwarding the email was to acquire “more information upon which more informed legal advice or assistance could be rendered.”
Though less prevalent than cases involving email, other cases involving more recent technologies are also instructive.
Instant messages In many ways, instant messaging has become the new email, providing what some corporate employees perceive as a faster, easier means of communicating with individuals and teams. Because instant messaging often seems more casual than email, there is a potential that employees let down their guard and do not adhere to good communication practices befitting a business environment.
This includes demonstrating the same criteria for privilege and work product as applied to all such communications. For instance, in Skansgaard v. Bank of America NA, the US District Court for the Western District of Washington in 2013 held that the defendants “have not established” that instant messages between two nonattorney employees were privileged because “[n]o attorney communication is attached” and there is no “evidence that this communication took place at the direction, or authorization, of an attorney.”
Like instant messages, text messages are used by some in place of email, particularly for less formal communications. Texts can also be used to send alerts or transmit urgent messages between parties.
Courts have generally found that text messages provide a reasonable expectation of privacy in attorney-client text messages sent or received on a personal device if the messages are not disclosed to a third party. With that said, the other criteria applicable to privileged or work-product communications must be satisfied.
Last year, in Sonrai Systems LLC v. Romano, the US District Court for the Northern District of Illinois found that “text messages were protected by the attorney-client privilege in the first instance because they reflect Romano’s request for legal advice and Kanabay’s provision of such advice.”
In Orchestrate HR Inc. v. Trombetta, the US District Court for the Northern District of Texas in 2014 found that the defendants “have failed to meet their burden” because “they do not offer affidavits or other documentation to support their assertion of the work product privilege.”
Social media is a broad category. In general, given that the purpose of social media is to share information, courts have generally found that there is no reasonable expectation of privacy in information posted online. As a result, attorney-client communications shared on social media sites are generally not privileged.
In Romano v. Steelcase Inc., the New York Supreme Court for Suffolk County held in 2010 that when a personal injury plaintiff “created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.”
Given this authority, corporate employees should be told that they should not post online any information that is subject to the attorney-client privilege or ongoing litigation.
Voicemails While generally discoverable as electronically stored information, the use of voicemail, like telephone calls, is on the decline. As a result, there are few cases discussing voicemail and privilege or work product. Those that do are generally focused on inadvertent disclosure.
For example, in Howell v. Joffe, which involved allegations of sexual abuse by a priest, the defendant’s lawyer left a voicemail for the plaintiff’s counsel. When the defendant next called his client, the attorney-client conversation was also recorded on the voicemail. A 2007 Northern District of Illinois decision found that the conversation was privileged because its primary purpose was to seek and provide legal advice and that voicemail recording was an inadvertent disclosure.
In another case involving an inadvertent voicemail of an attorney-client conversation, Jasmine Networks Inc. v. Marvell Semiconductor Inc., a decision by the California Court of Appeal for the Sixth Appellate District found waiver of the privilege because it was “clear [defendant] made an uncoerced disclosure of information.”
How remote working technologies affect privilege and work product With remote work, corporate employees, in-house lawyers and outside counsel have turned to a variety of technologies to communicate and collaborate. These technologies often include online collaboration tools that are web-based applications that allow groups to work together by connecting through an online portal that is often password-protected.
These tools can come in a variety of forms, but they generally include three key components: (1) communication; (2) creation; and (3) collection – that is, the storage of information and data.
With respect to communication, these tools generally include voice, video, instant messaging, and other options, such as shared calendars, task lists and white boards. The creation phase allows multiple team members to create, edit and comment on documents, spreadsheets, slide decks and other material in real time. And the collection aspect continually and systematically saves the team’s activities, including every iteration of a document reflecting each team member’s edits and comments.
Because of the many options these tools provide, they raise a number of potential questions related to privilege and work product, such as:
- How do companies prepare for increased e-discovery obligations from the increasing number of online collaboration and other tools used by employees working remotely during the COVID-19 pandemic?
- How do in-house counsel help to ensure that privileged communications and content are clearly identified and kept separate from nonprivileged content?
- When sharing documents requires only the touch of a button, how do corporations ensure that the privilege is not destroyed by inadvertent sharing or other actions by team members?
- How will courts assess the privilege for documents created collectively by several client team members?
- For multinational teams, how should companies adhere to the privilege rules of different countries?
10 ways to safeguard privileged communications in a remote work world
As we continue to work remotely in 2021 and increasingly communicate online through a variety of platforms, we provide the following 10 tips for in-house and outside counsel to consider.
1. Focus first on security.
Confidentiality is a key element of both the attorney-client privilege and the attorney work-product doctrine. Just as attorneys and clients must generally take steps to avoid their conversations being overheard by others, those working remotely should also take steps to ensure the confidentiality and security of privileged communications, such as adding password protection, encrypting communications and other means. 2. Clients should include a clear request for legal advice.
Courts have long held that merely copying legal counsel, in and of itself, is not enough to trigger the attorney-client privilege. The attorney-client privilege is a two-way street, and it is important that clients be told the importance of asking for legal advice.
This can be done in a variety of ways. For example, if an online collaboration tool is being used to seek legal advice (such as by inviting in-house or outside counsel into a group to advise on a document or issue), make it clear from the outset by using phrases such as “seeking legal advice.”
3. Attorneys should clearly label legal advice.
Where communications are potentially discoverable, legal advice and attorney work product should be appropriately labeled, using clear wording such as “privileged and confidential,” “attorney-client communication,” and “attorney work product.”
These labels are helpful for two reasons: (1) They help make the privilege clear to the sender and recipient (and any future judge evaluating the document); and (2) when documents are collected and reviewed in discovery, they allow document reviewers to easily identify material that is privileged and to avoid inadvertent production.
When working remotely, if Zoom or other online meetings are recorded, it may be helpful to label the meeting by including it in the invite announcing the privileged nature of the discussion at the outset of the meeting.
4. The content should match the label.
Just as copying an attorney is insufficient, on its own, to establish privilege, the “privilege” label is likewise insufficient on its own. It is important that the content of the communication also clearly demonstrate to an objective observer that the content is subject to the attorney-client privilege or attorney work-product doctrine.
For example, when reviewing a client’s draft public statement for potential litigation risk, include language making this purpose clear, such as “this analysis reflects our firm’s legal advice regarding potential litigation risk of the attached statement” or other words to that effect. If there is ever a dispute about privilege, this will allow you to refer directly to language in the document itself.
5. Set apart nonprivileged material.
Whether in the form of emails, instant messages or shared online sites, it is generally helpful to separate the privileged material from the nonprivileged. Otherwise, courts may determine that the privilege has been so diluted as to be implicitly waived.
For instance, in a 2018 decision in RCHFU LLC v. Marriott Vacations Worldwide Corp., the US District Court for the District of Colorado held that in-house counsel should have put its advice on a company memorandum in a confidential addendum or even a separate memorandum, and that “by so intertwining the legal advice within a majority contribution of business advice, an implicit waiver of the attorney-client privilege has occurred.” 6. Limit group members.
Because courts focus not only on content but also on the recipients of privileged communications, it is generally advisable to limit the number of recipients to those who are essential to the legal advice at issue. As a general matter, the more nonlegal members involved, the greater the likelihood that a court may consider the subject matter to be nonprivileged.
When working remotely and communicating via email, instant messaging or other tools, consider whether those added to the communication are necessary or important to the issue.
7. Use “do not forward” designations to avoid inadvertent disclosure.
If an otherwise privileged communication is shared by the client with nonlegal personnel, the privilege may be destroyed. Using designations such as “do not forward” and advising team members not to share beyond the team avoids an inadvertent disclosure or weakening the privilege.
In the event of an inadvertent disclosure, such a label may also help to “prove that [the client] did not intend to disclose the privileged documents and that, despite the inadvertent disclosure, [the client] took adequate steps, given the circumstances, to prevent the disclosure,” as the US Court of Federal Claims put it in a 1997 decision in International Business Machines Corp. v. US.
8. Prepare business colleagues in advance.
The ease and casual nature of today’s communication technologies often invites a lack of formality and propriety that are anathema to privileged communications. Where possible, it is helpful to educate business colleagues in advance on the importance of maintaining the attorney-client privilege and attorney work-product protections and general guidelines for doing so.
If litigation is anticipated, consider taking the time with key individuals so that they understand how privilege works and how to label and describe documents, emails and online collaboration activities. Where possible, consider an audit of these issues at regular intervals to help ensure that best practices are being followed. If colleagues are not adhering, it is helpful to know about it before issues arise in a litigation. 9. If adding third parties, document properly.
The work-product doctrine covers documents or the compilation of materials prepared by agents of the attorney in preparation for litigation. This includes nonattorneys, such as investigators, nontestifying experts and other consultants.
Before retaining or including these third parties in communications, however, it is generally helpful to document that their work is being “prepared in anticipation of litigation or for trial,” and that they must keep their work confidential.
10. Be mindful of international privilege rules. Privilege rules vary widely by country, so it is important to be mindful of other countries’ rules when team members are from multiple jurisdictions. Because many countries do not recognize the attorney-client privilege for in-house counsel, if in doubt, it is generally a good rule of thumb that outside counsel communicate privileged information.
As we continue to work remotely, we anticipate greater guidance from courts on how the attorney-client privilege and work-product doctrine apply to communications among those working remotely and communicating through various online tools. We are hopeful that by considering the 10 tips above, corporations, their in-house legal departments, and others will be well prepared to adapt as the law continues to evolve.
An earlier version of this article was published by Law360 on March 29, 2021.