organizational privilege & organizational insiders

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Post on 08-May-2015




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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 employers 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.


  • 1.Organizational Privilege & Organizational Insiders Kathleen Clark AALS January 5, 2013

2. Lawyers Representing Whistleblowers 3. Whistleblowers 4. Organizational Insiders Adverse to their Organization 5. Whistleblower Protection 6. Other Employment Claims 7. Financial Incentives 8. False Claims Act Dodd Frank IRS 9. Organizations Privileged Documents 10. Opportunity for Exposure 11. Whistleblower has documents that may be privileged 12. What do whistleblower lawyers do ? 13. Tell client: Dont provide privileged documents 14. Delegates to client privilege review 15. Lawyer herself reviews 16. Other lawyer in firm reviews 17. Paralegal in firm reviews 18. LPO reviews 19. Predictive Coding 20. United States ex rel. Frazier v. IASIS Healthcare 21. ordinary civil litigation 22. Discovery 23. Privilege Log 24. Criminal investigations 25. Review by non-litigator 26. Court 27. Court - judge / magistrate - special master 28. Taint / privilege team 29. Organization has opportunity to object 30. United States ex rel. Frazier v. IASIS Healthcare 31. Recommendation: separate taint team / LPO 32. After review: Segregate & Return Privileged Docs 33. Organizational Privilege & Organizational Insiders Kathleen Clark AALS January 5, 2013