Christopher Campbell guides you through the evolving challenges of maintaining attorney-client privilege amidst new technologies. Discover how to safeguard confidential communications while utilizing online collaboration tools and artificial intelligence. Gain practical strategies and insights to ensure your practice upholds privilege in the digital age.

1. Understanding Attorney-
Client Privilege and New
Technology
Presented By
Christopher Campbell
Christopher Campbell

2. 2
A person in a suit and tie
Description automatically generated
Chris Campbell is the Chair of DLA Piper's Product Liability and
Mass Tort practice group, one of the world's largest and most
acclaimed teams in product liability defense. A Harvard Law
School graduate, Chris has 20 years of experience in mass tort,
class action, and complex commercial litigation, including
trials and appeals. He has served as global, national, and trial
counsel for companies in life sciences, food and beverage,
automotive, and insurance sectors. Chris also advises clients
on regulatory, communications, and strategic matters
impacting their business interests or reputations. Recognized
by The Legal 500 United States and selected by Law360 as a
"Rising Star," he is noted for his ability to simplify complex
science and his creative tactics. Chris frequently speaks and
writes on product liability, mass torts, class actions, attorney-
client privilege, expert witnesses, and trial tactics.
CHRISTOPHER CAMPBELL
Partner, DLA Piper

3. 3
Agenda
Background on
Privilege and Work
Product
Privilege and
Technology,
Including AI
10 Tips for
Safeguarding
Privilege

4. 4
What is attorney-client
privilege and the attorney
work product doctrine?

5. • Began in English common law in the 1500s
• Exists “to encourage full and frank communication between attorneys and
their clients,” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)
• Key elements:
1. Client or someone seeking to become a client;
1. Attorney or subordinate of an attorney; and
1. Confidential communication seeking or providing legal advice
5
Attorney-Client Privilege

6. 6
What Is Not Privileged?
Simply labeling a communication “privileged”
Simply copying a lawyer on communications
If otherwise privileged communications are shared with third-parties
(express waiver)
If privileged communications are raised as a defense (e.g., claiming a
patent infringement was not willful by citing attorney advice) (implied
waiver)
Communications used to facilitate a crime or fraud

7. 7
Attorney Work Product
• Formalized in Hickman v. Taylor, 329 U.S. 495 (1947)
• Key elements:
1. Documents or materials (e.g., notes, analyses, and mental impressions);
1. Prepared by or at the direction of an attorney (e.g., consulting experts,
other third parties);
1. During or in anticipation of litigation (or other proceeding)
• Potentially discoverable if “substantial need” (e.g., interview of
witness who dies)

8. 8
How is privilege different when
the client is a corporation?

9. 9
Privilege and Corporate Clients
• Corporate clients raise complexities regarding privilege, due to
multiple employees and roles
• Courts focus on two elements:
1. Substance of the communication (“primary purpose” test);
1. Role of the employees involved
• With in-house counsel, courts apply a “stricter standard” for
privilege because of dual business and legal roles

10. 10
How have newer
communication technologies
impacted privilege?

11. 11
Privilege and Online Collaboration
• Traditionally, less formal communication created no record (e.g., in person,
phone)
• And only more formal communication created record (e.g., letter, memoranda)
• As technology evolves, easier, less formal technology creates a record (e.g.,
email, text, instant message, online meetings)
• Additional factors:
• Easier to share outside intended audience
• Less assurance of confidentiality
• Broad subject range (e.g., long text chain)
• Joint creation of documents
• Online meetings (e.g., Microsoft Teams)

12. 12
Text Messages
• Total Quality Logistics, LLC v. BBI Logistics LLC, 2022 WL 1298435, *1 (Ohio
Ct. App. May 2, 2022)
• Breach of contract case
• Plaintiff requested Defendant’s text messages
• Defendant withheld several texts as privileged but provided no description
on privileged log
• Court ordered Defendant to produce texts because the privilege log “does
not give any indication what the text messages are about and does not
state that they were made for the purpose of discussing legal advice”
• Takeaway: If communicating with counsel by text, label texts as
“privileged” and make sure that substance of text reflects legal advice
sought or given

13. 13
Instant Messages
❑ Dolby Laboratories Licensing Corp. v. Adobe Inc., 402 F. Supp. 3d 855 (N.D.
Cal. 2019)
❑ Copyright infringement case
❑ Plaintiff sought instant messages
❑ Defendant argued that certain messages were privileged because they
were “discussing legal advice” from Defendant’s inhouse lawyer
❑ Court disagreed, holding that “[b]ecause it is impossible to tell from
context … whether those portions of the thread reflect a discussion of legal
advice given by counsel, the court finds that they are not privileged”
❑ Takeaway: If conducting privileged communications by instant
messaging, label communications as “privileged” and make sure that
substance of text reflects legal advice sought or given

14. 14
Social Media
Lenz v. Universal Music Corp., 2010 WL 4789099, *1 (N.D. Cal. Nov. 17, 2010)
Plaintiff sued to use Prince’s “Let’s Go Crazy” on YouTube
Plaintiff posted openly on social media and emailed with family about
conversations with her lawyer
Defendant argued express waiver, requested Plaintiff’s attorney-client
communications referenced online
Court agreed, holding that, “[w]hen a client [uses social media and] reveals
to a third party that something is ‘what my lawyer thinks,’ she cannot avoid
discovery on the basis that the communication was confidential”
Takeaway: Do not discuss communications with counsel with others,
particularly on social media or online

15. 15
How does AI fit in?

16. 16
What is Generative AI?
Technology-assisted review software streamlines the discovery and
production process by employing a machine-learning algorithm to assist in
categorizing documents with the appropriate coding.
Uses inputs from various external sources to build a model of the world, from
which it can create, or generate, new content based on user prompts. As the
name connotes, generative AI tools generate new content.
Algorithmic AI
Generative AI

17. 17
AI and Privilege
Risk avoidance - An AI tool built in a closed, internal system behind a
firewall and protected by other appropriate controls can help avoid some
of the privacy risks associated with open, public AI platforms
Autonomy - By adopting an internal generative AI tool, attorneys and
legal departments can have more autonomy to secure input and output
data through internal rules and protocols
Control - Enterprise or proprietary versions of these tools can give
lawyers more control over how data is handled and can lead to terms of
service with stronger protections
Building internal generative AI systems.

18. 18
What are some tips for
safeguarding privilege?

19. 19
1. Maintain confidentiality
Confidentiality is a necessary element of the privilege and work product
protections
See Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 WL 4368617, *3
(W.D. Va. 2017) (company inadvertently provided access to opposing
counsel by uploading files to Box, “a publicly accessible, non-password-
protected website”; ultimately found no waiver)
Before meetings with business colleagues, remind them of the importance
of confidentiality
Data stored on public AI platforms may not be entirely private. Information
entered into public AI reportedly has leaked into other chats with third
parties.

20. 20
2. Label privileged communications
• Label privileged communications “Privileged & Confidential” or something
similar
• Privilege labels are important for two reasons:
1. They help make the privilege clear to the sender and recipient (and
any future judge evaluating the document).
1. When documents are collected and reviewed in discovery, they allow
document reviewers to easily identify material that is privileged and to
avoid inadvertent production.
• If online collaboration meetings are recorded by video or audio, it is helpful
to state at the outset if the meeting is privileged

21. 21
3. Make sure the content matches the label
Merely labeling a document “privileged” or
copying a lawyer does not establish privilege. See, e.g., Phillips v. C.R.
Bard, Inc., 290 F.R.D. 615
(D. Nev. 2013)
The content should demonstrate to an objective observer that this is a
confidential communication between attorney and client for the
primary purpose of seeking or providing legal advice
This is because courts assessing privilege primarily look at the
communications themselves, as opposed to after-the-fact
explanations of context
Also, do not overuse the “privileged” label because this dilutes its effect

22. 22
4. Be deliberate with the “work product” label
“Reasonable anticipation of litigation” is the commonly accepted
trigger to issue a legal hold to preserve evidence
The work product doctrine protects materials prepared “in
anticipation of litigation”
Some courts have held that a litigation hold must be in place as soon
as a company marks materials as work product
See Siani v. State Univ. of N.Y. at Farmingdale, 2010 WL 3170664, *1
(E.D.N.Y. 2010) (holding that if litigation was foreseeable for work
product purposes, it was foreseeable for preservation purposes)

23. 23
5. Limit non-legal participants
When assessing privilege for a corporation, courts look at the roles of the
non-legal participants
As a general matter, the more non-legal participants on a communication,
the greater the likelihood that a court will consider the communication non-
privileged
See In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 809 (E.D. La. 2007)
(“When e-mail messages were addressed to both lawyers and non-lawyers
for review, comment, and approval, we concluded that the primary purpose
of such communications was not to obtain legal assistance since the same
was being sought from all.”)
If setting up an online platform on a privileged issue, consider limiting access
to essential non-legal team members

24. 24
6. Segregate non-legal content
In-house counsel regularly provide business and legal advice
When communicating on business and legal issues, consider segregating the
non-legal content so that it will be clear what is privileged
See RCHFU, LLC v. Marriott Vacations Worldwide Corp., 2018 WL 3055774, (D.
Colo. May 23, 2018) (criticizing in-house counsel for failing to treat business
and legal advice separately, such as “blocking the advice into separate
paragraphs or pages, including it in a confidential addendum or even a
separate memorandum”)
With online collaboration platforms, consider designating separate folders or
areas for legal and non-legal content

25. 25
7. Use outside counsel effectively
When maintaining privilege is
particularly important, such as when
creating and reviewing key regulatory
and other documents, consider
working through outside counsel
Communications by outside counsel
are generally presumed privileged. In
re Vioxx Prods. Liab. Litig., 501 F. Supp.
2d at 797 n.12.
Communications by outside counsel
often do not need to be listed on a
privilege log
Consider a process like one to the
right:
Client
Outside Counsel
Document
Author
In-house
Counsel
Author and
Other Business
Colleagues

26. 26
8. Prepare business colleagues in advance
It is difficult to learn privilege guidelines in the midst of a litigation
or investigation
Where possible, consider meeting with business colleagues in
advance on an annual basis on the attorney-client privilege and
attorney work product protections and general guidelines for
doing to help instill good habits
If a significant litigation or governmental investigation matter is
anticipated, consider a refresher for those business colleagues
involved, including highlighting key documents or events related
to the litigation

27. 27
9. For third-party consultants,
define their role clearly
The work product doctrine covers non-attorneys retained by counsel,
including investigators, non-testifying experts, and other consultants
Before retaining them, it is generally helpful to document their role in
connection with the litigation and indicate that their work is confidential
Wherever possible, outside counsel should direct the involvement of
third-party consultants
See Gottwald v. Geragos, 167 N.Y.S.3d 84, 86 (N.Y. App. Div. 2022) (no
privilege for “defendants’ communications with their public relations firm,
which do not reflect a discussion of legal strategy … but rather a
discussion of public relations strategy”)

28. 28
10. Be mindful of international privilege rules
Keep the “touch base” test in mind, which applies U.S. privilege law to
communications that relate to U.S. law or U.S. legal proceedings
If communications touch base with U.S., reflect this in the content of the
communications themselves
If another country’s privilege law is likely to apply, keep in mind that many countries
do not recognize the attorney-client privilege for in-house counsel,
If in doubt, it is often a good rule of thumb to use outside counsel to communicate
privileged information
Consider checking available resources, such as DLA Piper’s Legal Privileged Global
Guide, available at:
file:///C:/Users/cc10598/Downloads/DLA-Piper-Legal-Privilege-Full
Handbook%20(1).pdf

29. QUESTIONS?
29

30. 30
Contact Information
Call or email and I'd be happy to speak with you more in-depth or answer any questions.
Christopher G. Campbell
www.dlapiper.com
404.736.7808
christopher.campbell@us.dlapiper.com
Christopher G.
Campbell