- Documents, or parts of documents, including board minutes, which evidence a privileged communication may themselves be privileged.
- So, for example, where board minutes, summaries or reports record legal advice given or presented to the board, the relevant sections of these documents should be covered by legal advice privilege and, if so, can be redacted prior to disclosure.
- It is important in these circumstances that the document evidencing the privileged communication remains confidential, and that privilege cannot be said to have been waived (for example, because the legal advice has been disseminated without adequate safeguards, as discussed above).
- Equally, any record of discussions during the board meeting to which litigation privilege applies may be redacted on the basis that it is protected by litigation privilege. However, for litigation privilege to apply:
- the litigation (or other adversarial proceedings) must either have commenced or be contemplated as more than a mere possibility. Where a potentially problematic issue has arisen and is discussed without lawyers at a board meeting, any record of this discussion risks not being protected by litigation privilege unless it refers to legal advice where legal advice privilege may apply; and
- where litigation privilege is claimed, the dominant purpose test will need to be met – i.e. it will need to be shown that the discussions took place for the dominant purpose of obtaining information or advice in connection with the contemplated litigation. If the discussions are relaying legal and/or tactical advice from a lawyer, then this advice should remain protected by legal advice privilege.
- Where a potentially problematic issue has arisen but litigation may not be in contemplation for the purposes of litigation privilege, the presence of a lawyer at the board meeting, to whom these issues can be communicated, may assist in asserting legal advice privilege over the subsequent board minutes.
- It is common for US companies to have a member of the legal team, such as the general counsel or outside counsel, serve as secretary to the board. But, just because a member of the legal team has attended the board meeting and captured the minutes does not mean that the board minutes will automatically be privileged, and such broad-based privilege claims generally do not withstand court scrutiny.
- Instead, board minutes, or portions of board minutes, can be privileged under US law when they capture legal advice rendered either by in-house lawyers or external lawyers or discussions of ongoing litigation.
- Board participants should be aware of the potential for a waiver of the privilege. Board meetings are often attended and observed by other third parties. In some situations these third parties can give rise to a waiver. In such circumstances, it is best practice for a board to excuse third parties during portions of the meeting that cover privileged topics.
- The typical way that companies handle disclosure of board minutes is to evaluate the minutes for privileged information, redact the privileged information, and produce the remaining material to the other side.