Proceed with Caution: Attorney-Client Privilege and Communications with Third-Party Consultants

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.