Legal Definitions - litigation privilege

Litigation privilege is a legal principle that protects certain communications and documents from being disclosed to the opposing side in a lawsuit. Its primary goal is to allow parties and their legal teams to prepare for legal proceedings thoroughly and candidly, without the concern that their preparatory work will be revealed to their adversaries. This privilege applies to materials created specifically for the dominant purpose of actual or reasonably anticipated legal proceedings.

Here are some examples to illustrate how litigation privilege works:

• Example 1: Internal Investigation for Anticipated Lawsuit

  Imagine a technology company discovers a potential data breach. Fearing a class-action lawsuit from affected customers, the company's in-house legal department immediately initiates an internal investigation. They interview employees involved in data security, review system logs, and compile a confidential report detailing their findings, potential liabilities, and strategic recommendations for defense. This report is shared only with senior management and external counsel.

  How it illustrates the term: The internal investigation report, interview notes, and legal analysis are protected by litigation privilege. They were created for the dominant purpose of preparing for the anticipated class-action lawsuit. This allows the company to thoroughly investigate the incident and strategize its defense without having to immediately hand over its internal findings and legal assessments to potential plaintiffs, which could be used against them.

• Example 2: Expert Witness Consultation for Defense Strategy

  A pharmaceutical company is sued for alleged side effects of one of its drugs. Their legal team consults with several medical experts to understand the scientific basis of the claims, explore potential defenses, and identify weaknesses in the plaintiff's arguments. During these consultations, the experts provide preliminary opinions, conduct research, and exchange detailed communications with the lawyers, all aimed at formulating the company's defense strategy.

  How it illustrates the term: The preliminary reports, research, and communications between the legal team and these medical experts, created for the dominant purpose of preparing the defense for the lawsuit, are covered by litigation privilege. This enables the legal team to explore various scientific angles and expert opinions without immediately disclosing all their preparatory work and strategic considerations to the plaintiff's lawyers.

• Example 3: Witness Interviews by a Lawyer

  A homeowner hires a lawyer after a contractor allegedly performed faulty renovation work, leading to significant damage. The lawyer interviews several neighbors who witnessed the contractor's work, taking detailed notes of their observations and potential testimony. These interviews are conducted to gather facts, assess the strength of the case, and prepare for potential court proceedings.

  How it illustrates the term: The lawyer's notes from these witness interviews are protected by litigation privilege. This ensures that the lawyer can thoroughly investigate the facts and build the client's case without being compelled to immediately hand over their investigative work product to the opposing contractor's legal team. It allows for a more strategic and comprehensive preparation for litigation.