organizational privilege & organizational insiders
DESCRIPTION
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.TRANSCRIPT
Organizational Privilege
& Organizational Insiders
Kathleen Clark
AALSJanuary 5, 2013
LawyersRepresenting
Whistleblowers
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
