It is a fairly common situation. A company is facing an
issue that someone thinks the board of directors ought to know
about, so general counsel retains outside counsel to provide
advice. Maybe outside counsel prepares a memo. Maybe he
or she appears at a board meeting to give a presentation with
others from the company. Later on, someone asks for those
materials—the memorandum and the presentation, as recorded in
meeting minutes or PowerPoint slides.
Are the presentation to the board and related materials
protected by the attorney-client privilege or the attorney work
product doctrine, or both?
The answer is probably both, but it is not automatic. A
recent order in the Birmingham Hip Resurfacing MDL is worth a read
on these points because it lays out the rules and correctly found
that such documents were protected. The documents at issue
were (1) a 62-page document prepared for the board regarding
"current and anticipated litigation issues" (the
"Briefing
