Inviting Scrutiny: How Technologies are Eroding the Attorney-Client Privilege

Abstract

This article describes how digital age technologies and heightened judicial scrutiny are negatively affecting the attorney-client privilege claims of in-house counsel. The article spotlight the factors that are causing technology to negatively impact in-house privilege claims. This includes a discussion regarding the historical basis for increased court scrutiny of such claims. The article also examines how the indiscriminate use of email by corporations has invited the courts to view those claims with even greater skepticism. The article then explores how such skepticism bodes poorly for organizations as they attempt to protect their internal lawyers’ claims from the transparency that social networks, cloud computing, and BYOD provide into their discussions. Finally, the article offers some practical suggestions that can help mitigate the impact of these technological challenges.