organizational privilege & organizational insiders

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Many whistleblowers have access to documents that their employers consider to be privileged. As a practical matter, how should a lawyer respond when her client gives her the employer’s documents, some of which may be privileged? The United States is witnessing a dramatic increase in whistleblower cases as the government has expanded the availability of financial incentives for whistleblowers under Dodd-Frank and the tax whistleblower program. More lawyers are getting involved in the representation of whistleblowers, yet there is little guidance for these lawyers on this tricky issue. This article will provide guidance for whistleblower lawyers and recommend several “best practices” that will enable them to advocate on their clients behalf without undermining the legitimate privilege claims of their adversaries.

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Organizational Privilege

& Organizational Insiders

Kathleen Clark

AALSJanuary 5, 2013

LawyersRepresenting

Whistleblowers

Organizational InsidersAdverse to their

Organization

WhistleblowerProtection

OtherEmployment

Claims

Financial Incentives

False Claims ActDodd Frank

IRS

Organization’sPrivileged

Documents

Opportunityfor

Exposure

Whistleblowerhas

documentsthat may beprivileged

Whatdo

whistleblowerlawyers

do?

Tell client:“Don’t provide

privilegeddocuments”

Delegates to clientprivilegereview

Lawyerherself

reviews

Other lawyerin firm

reviews

Paralegalin firm

reviews

LPOreviews

Predictive Coding

United States ex rel. Frazier

v. IASIS Healthcare

ordinarycivil

litigation

Discovery

PrivilegeLog

Criminal investigations

Reviewby

non-litigator

Court

Court - judge / magistrate - special master

Taint / privilege team

Organization has

opportunity to

object

United States ex rel. Frazier

v. IASIS Healthcare

Recommendation:separate

taint team / LPO

After review:Segregate & Return

Privileged Doc’s

Organizational Privilege

& Organizational Insiders

Kathleen Clarkkathleen@wustl.edu

AALSJanuary 5, 2013

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