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.