Keep privileged information private to ensure successful resolution of legal disputes.
Information control is a matter of utmost concern during litigation. Much of this concern centers around the legal concept of “privilege.” Reviewing this information when legal issues arise will help control unwanted disclosure of sensitive information.
Private Communication is Privileged
The attorney-client privilege exists when a client communicates with his attorney while seeking legal advice. For institutions, the scope of privilege can be rather broad depending on the jurisdiction. Courts have adopted a variety of tests to determine who the "client" is when an institution is involved. In Ohio, communications made to an employer's counsel by employees are encompassed within the attorney-client privilege.
Use Caution in Waiving Privilege
The common problem that arises in the context of privilege is waiver. Waiver is the voluntary relinquishment of a legal right. Privilege is subject to the rule of waiver. Courts have adopted rather relaxed standards on when a privilege can be waived. For example, even inadvertent disclosure can result in a waiver of privilege. In addition, disclosing privileged information to a third-party not considered to be a part of the "client" will result in a waiver. Because this can result in interfering with the adequate defense of the institution in a legal proceeding, it is important to follow the simple guidelines below if your office or department is involved in litigation.
- Notify the Office of General Counsel of issues that may result in potential legal liability to the University;
- Consult with the Office of General Counsel about what documents and communications will be privileged;
- Identify members of the University community who have a privilege and instruct them on how to maintain that privilege; and
- Take active steps to ensure that privileged documents and communications are kept confidential and not disclosed to third-parties.