In our modern economy, businesses regularly use all manner of
third-party consultants for many different reasons, including cost,
efficiency, and expertise. Less regularly, communications
between businesses and consultants are the subject of discovery
motion practice in litigation. Two recent decisions out of
the Southern District of New York demonstrate why businesses that
use third-party consultants should proceed with caution to preserve
claims of attorney-client privilege, and prevent the disclosure of
what would otherwise be privileged communications.
In a normal business setting, the attorney-client privilege is
not implicated when third-party consultants are involved in typical
business functions, such as meetings, revising draft documents, and
setting corporate policy. However, the privilege can be, and
often is, at issue when privileged communications are shared with
these consultants.
