Philip J. Favro


The attorney-client privilege is sacrosanct, but its protections are eroding. Always narrowly construed, its zone of protection is becoming even smaller, particularly for in-house counsel. This is due to organizations’ inability to address the impact that technological innovations have had on the privilege. In many instances, new and disruptive technologies are assaulting the privilege as a result of unsuspecting corporate practices. This Article details how technology advancements coupled with heightened judicial scrutiny have chipped away at the protections the privilege affords to internal counsel. The historical basis for increased court scrutiny of in-house counsel’s privilege claims is detailed. With respect to technology, e-mail is spotlighted as a principal causation element in this process.1 In addition, the Article explores how social networking sites, cloud computing, and corporate “bring your own device” policies all have the potential to undermine the privilege assertions of in-house counsel. Finally, some best practices are discussed which, if followed, can help prevent further erosions to such claims.