Does a Company’s General Counsel Ever Waive the Privilege by Sharing Privileged Documents with the Company’s Executive Vice President?

May 28, 2003

It is easy to forget that sharing privileged communications even within a corporation can result in a waiver if the sharing extends beyond those corporate officers or employees with a “need to know.”

In Ashkinazi v. Sapir, No. 02 Civ. 0002 (RCC)(MHD), 2003 U.S. Dist. LEXIS 230, at *3 (S.D.N.Y. Jan. 8, 2003), the plaintiff sued a company for wrongful termination. Plaintiff sought to learn the substance of conversations between the company’s general counsel and one of its executive vice presidents. The court held that the discussions were not privileged, because the executive vice president was not involved in the termination decision and had never requested advice from the general counsel about that issue. The court also held that the plaintiff could ask about conversations during meetings which the executive vice president attended, “since his presence has not been shown to have been necessary.”

Corporations and their lawyers should remember that conversations with (or in the presence of) even the highest level of company management might waive the privilege if the executive has no “need to know.”