Information control becomes a matter of utmost concern during litigation. Much of this concern centers around the legal concept of privilege. Review of these steps when legal issues arise should help control unwanted disclosure of sensitive information during litigation.
What is privilege?
Privilege is a legal right that allows a party to protect the confidentiality of information during litigation. Privilege is a rule of evidence law applicable to court proceedings. A common example of a privilege is the attorney-client privilege.
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.
Relinquishment of 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 apart of the "client" will result in a waiver. Because this can often result in interfering with the adequate defense of the institution in a legal proceeding, it is important to follow the simple quidelines below when 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.
Taking an active role in ensuring that information eligible for privilege stays privileged is a strong step to helping ensure successful resolution of legal disputes. In turn, this helps strenghten our institution.